Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon

HIS HONOUR: By a statement of claim filed 5 September 2017, Jacqueline Pike (“the plaintiff”) commenced negligence proceedings against Coles Supermarkets Australia Pty Ltd (“Coles”) (“the Coles proceedings”). The Coles proceedings arise from a fall by the plaintiff (“the incident”) that occurred in a car park on 20 January 2015 outside a supermarket operated by Coles (“the supermarket”).

The supermarket and car park were located within the Cambridge Gardens Shopping Centre at Boomerang Place, Cambridge Park in the State of New South Wales (“the shopping centre”). After undertaking shopping for groceries at supermarket, the plaintiff returned to her car situated in the car park adjacent to the shopping centre. Whilst transferring her groceries into her ue the plaintiff stepped back from her vehicle to an uncapped drainage pipe, thereafter falling backwards landing on her “bottom”.

The registered owners of the shopping centre were Isaac Solomon, Elizabeth Oxman and Sara Cooper (collectively, “the owners”). By a statement of claim filed 24 April 2018, the plaintiff commenced further negligence proceedings against the owners (“the Solomon proceedings”). The Coles and Solomon proceedings were heard together.

Both Coles and the owners filed cross-claims against each other in their respective proceedings (“the cross-claims”). A central issue in the cross-claims was control of the relevant area, in particular, having regard to the terms of the lease under which Coles occupied, at least, the supermarket premises and had some responsibilities with respect to the car park. I will return to the terms of the lease below.

Prior to the hearing, both Coles and the owners resolved the claims brought between them, respectively. As such the cross-claims do not need to be determined. As at the time of the hearing, both Coles and the owners were jointly represented. Hereinafter, Coles and the owners shall be, collectively, referred to as “the defendants”.

Prior to turning to the incident in greater detail, it is appropriate to provide dramatis personae, undertake a review of the aspects of evidence (including reasons as to rulings on the evidence and, in particular, a Markus ruling: Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1) and deal with issues of credit.

The plaintiff is 49 years of age. She was born in New Z4ealand and has lived in Australia since she was 13 years of age.

Since 1993, the plaintiff has worked various jobs in administration, customer service and maintenance/construction. She stopped working in 2010-2015 due to an autoimmune disease, “Buerger’s disease”. The plaintiff was also afflicted by a “prolapsed disc” in her lower back, which she deposed “prevented me from working”. She received financial support via a Disability Support Pension.

In her evidentiary statement dated 10 May 2019, the plaintiff provided the following description of her pre-existing conditions:

She stated that those pre-existing conditions left her “debilitated to a certain extent”. However, she was still able to perform chores around her house including cooking, cleaning, washing, gardening and shopping. The plaintiff deposed “I had no physical limitations whatsoever in terms of my ability to do this type of work around the home”.

Towards the end of 2014 and the beginning of 2015, the plaintiff stated that “I was feeling well enough such that I felt I could start work again”. She made a decision to return to mowing lawns and trimming edges. Whilst the work is labour intensive, it is work she had previously performed and she believed she could “juggle the work around my ability to perform the work” in instances where her disease “flared up”.

Immediately prior to the incident, the plaintiff had set up her own business: “Lawns N Edges”. She prepared signs that stated “Lawns N Edges” and mobile phone number. Those signs were hung on power poles in the Penrith area. By the time of the incident, the plaintiff deposed she “had a handful of phone calls and had undertaken two or three jobs”. The average lawn would cost between $50-80.

The plaintiff was required for cross-examination.

On 30 November 2011, the owners entered into an Exclusive Commercial, Industrial and Retail Management Agency Agreement (“the agency agreement”) with Raine & Horne Commercial Retail Services (“RHC”). By that agreement, the owners authorised RHC the exclusive right to manage and lease the shopping centre. (Prior to 2011, Kinleys Retail Property Pty Ltd (“Kinleys”) managed the centre. Kinleys subsequently merged with RHC).

By cl 6.1(a) of the agency agreement, RHC agreed to manage the shopping centre as described in the particulars to the agreement. The relevant particulars are extracted below:

By cl 8 of the agency agreement, the following special instruction was included with respect to management of the property:

On 28 November 2002, Coles commenced occupation at the shopping centre pursuant to a lease with the owners (“the lease”). The lease was for a 20 year term, with an option to renew for three further terms of 10 years each.

The diagram reveals that the supermarket is situated north-northeast of Boomerang Place and the car park (or “Car Parks”) are located on the western and southern boarders of the supermarket. (The car park was also referred to as the “lower” and “upper” car park in various documents).

Page 2 of Schedule F identifies the bordering properties, which include a McDonalds Restaurant situated on the western border, northwest of the supermarket, and a petrol station situated on the western border, southwest of the supermarket.

Page 3 of Schedule F reveals details of the interior of the supermarket, namely, the ground floor and the first floor.

Part Q of the lease concerns definitions and interpretation. It is assistive to briefly turn to some of the defined terms.

A reference to “the Centre” in the lease was defined as follows:

A reference to “Car Parks” was defined as “[t]he customer car parks in the Centre”.

Part G of the lease sets out the obligations of both Coles and the owner with respect to repairs.

Clause 29.7(a) expressly sets out the obligations of Coles with respect to the car park and repairs. It provides that during the term of the lease, Coles must (and at its cost):

Clause 29.7(c) provided:

Whilst there is no express clause with respect to any obligation upon the owners as to the repair and maintenance of the car park. Clauses 30-32 concern the obligations of the owners. Relevantly, cl 32 provides:

Ms Karen Skinner was the former Manager in Retail Property Management at RHC. She produced an evidentiary statement in these proceeding dated 2 September 2019, which contained the following, inter alia, annexures:

At the time of the incident, Ms Skinner was employed by RHC as the Assistant Shopping Centre Manager at RHC. In that role, she had responsibility of several shopping centres, including the shopping centre at Cambridge Gardens (earlier defined). Ms Skinner deposed that she “would attend the Centre at least every month to undertake inspections”. She also noted “I would prepare reports, manage major repair works and prepare the budget”.

As Ms Skinner was not available for cross-examination due to sickness, the following exchange was had between counsel (T91):

I will return to the relevant records and correspondence with respect to repairs and maintenance at a separate juncture.

The Court had before it substantial material filed with respect to the proceedings, which consisted of evidentiary statements, medical evidence, clinical reports and various documentations relied upon by the respective parties to the proceedings. The material was tendered as one exhibit before the Court.

The following evidentiary statements were filed:

The plaintiff and Mr McDowell were cross-examined.

An exhibit in the proceedings was a Joint Conclave Report dated 22 September 2020, prepared by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff, and Dr John Stephen, an orthopaedic surgeon qualified on behalf of Coles.

In addition to the Joint Conclave Report, the medical evidence relied upon by the plaintiff included, inter alia, the following:

The following clinical records of the plaintiff, produced by various practitioners, were also relied upon by the plaintiff:

In addition to the abovementioned material, the plaintiff also relied upon the following documents:

Coles relied upon the following documents:

The owners relied upon the following documents:

In support of the plaintiff’s case for economic loss, the plaintiff relied upon the following:

As to the material before the Court, the following may be noted:

I now turn to the Court’s reasons for the rulings with respect to the report of Dr Fearnside and the surveillance footage.

On 29 October 2020, the Court indicated that it would provide its reasons for decision with respect to the defendant’s Markus application and the ruling concerning Dr Fearnside’s report in the final judgment.

The next section of this judgment provide those reasons.

On 27 October 2020, the defendants sought to tender series of audio-visual recordings of the plaintiff taken between 26 July 2017 and 19 December 2019. The audio-visual recordings consisted of 12 hours of surveillance footage (“the surveillance footage”).

The chronology of the surveillance footage was as follows:

Both parties filed material over evening as to the application. Additional material was provided on 28 October 2020.

For the purposes of the application, the defendants tendered:

The defendants also referred and relied upon the following material, before the Court on the substantive application:

The plaintiff provided a schedule of transcript references in relation to the oral of evidence of the plaintiff on 27 October 2021 as to what she can and cannot do at work. Annexed to that document was a page of “Further Submissions”, which will be returned to below.

Part 3.11 of the Evidence Act 1995 (NSW) concerns discretionary and mandatory exclusions. Section 135 and 136 provide:

The definition of “probative value” in the dictionary to the Evidence Act provides:

Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), relevantly provides:

In Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662, the Full Court of the Federal Court observed that the balancing exercise in s 135 requires an assessment of the time that would be unduly wasted by the admission of the evidence.

In Koninklijke Phillips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; [2000] FCA 876, Burchett J observed (at [21]):

The defendants advanced the following submissions in support of the application:

As to the failure to make a pre-trial ex parte application pursuant to r 31.10(1) and (2), the defendants contended that omission “can provide no substantive basis for rejecting the evidence now” for the following reasons:

The defendants also submitted:

During the hearing of the application, counsel for the defendants advanced submissions in reply to the plaintiff, as well as producing a table of transcript references for matters that they say are relevant to determining whether or not the evidence supports a finding of a legitimate forensic purpose, namely, for the assessment of credit. That table is extracted below:

The following submissions were advanced as to the matters identified in the above table:

As to the further written submissions advanced by the plaintiff, counsel for the defendants submitted “we would dispute or raise issue with each of them”. In that respect, it was contended:

In opposition to the tender of the surveillance footage, the plaintiff advanced the following submissions:

Turning to consider the footage in closer details, counsel for the plaintiff advanced the following submissions:

As to the purpose of surveillance footage as relied upon by the defendants (and set out above), it was submitted:

In reply to the contentions at para 9, it was submitted:

The plaintiff also contended the Court would not accept the defendants’ contentions that the plaintiff “tailored” her evidence to make it more like what is shown and that her evidence has “doubtful veracity”. It was submitted both contentions are contrary to the evidence before the Court. In that respect it was noted, save for a couple instances, the surveillance footage shows “exactly what she says she can do” (see schedule of transcript references produced by the plaintiff). Further, the medical evidence “supports the plaintiff’s case unreservedly”.

The transcript references relied upon by the plaintiff, together with analysis by the plaintiff, is extracted below:

As mentioned earlier, further submissions were annexed to a schedule of transcript references

During oral submissions on the application, the parties each advanced submissions in reply to the respective transcript references relied upon in support or in opposition to a finding of a legitimate forensic purpose, namely, challenging the credit of the plaintiff.

Counsel for the defendants, in support of the relevant forensic purpose, contended that transcript references provided by the plaintiff as to her evidence support an adverse finding as to credit. In that respect, it was submitted:

As to the transcript references provided by the defendants, counsel for the plaintiff advanced the following submissions as to a selection of references:

The parties also briefly addressed the discretion of the Court to admit such evidence under ss 135 and/or 136. The plaintiff contended that as the surveillance footage has the capacity to be prejudicial to the plaintiff, noting it captures only a snapshot of time, the Court would be minded, to limit the use of it. However, as a primary submission, it was contended that it should be excluded on the basis that the evidence is “unfairly prejudicial”.

In reply, whilst noting that s 135 of the Evidence Act could be applied against the admission of the evidence, it was contended that the weight should be placed on the probative value of the evidence, which, it was submitted, “is manifest in the case of personal injury damages based on lack of capacity to work”. Counsel for the defendants contended that the surveillance footage should not be considered to have any prejudicial effect.

There was no dispute that the defendants had not complied with the provisions of r 31.10(1). The surveillance footage plainly falls within the definition of “audio-visual recording” pursuant to r 31.10(4) and the plaintiffs were not given the opportunity to inspect the recording 7 days prior to the commencement of the hearing (in fact, the recording was provided at the commencement of the hearing). Whether the application to address the footage was admissible fell for determination for the purposes of r 31.10 under sub-rule (2).

By r 31.10(2), a party who fails to comply with subrule (1) may not tender the audio-visual recording except under two circumstances:

The defendants primarily relied upon the former basis but alternatively sought leave of the Court.

To constitute a “prescribed item”, the audio-visual recording must be obtained “in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing”. I accept the submission advanced by the defendants that the footage was obtained by Coles for the purpose of testing the plaintiff’s credibility, inter alia, with respect to her volume of hours and jobs worked and to demonstrate, in that respect, that she has greater physical capacity and less restriction then set out in her testimony and in statements to medical practitioners.

Both parties produced schedules of transcript references and advanced submissions as to why the Court would or would not be satisfied that there existed a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item. The defendants, in that respect, emphasised that credit issues arise in several aspects of the plaintiff’s physical capacity. Several instances were sited, including references relied upon by the plaintiff, in which the plaintiff either down plays, denies or does not accurately describe the reality of her capacity – which may be contrasted with the footage (for example, her capacity to bend and lift the mower off the ute). Reliance was also placed on the accumulation of issues referred to is as significant as the examples highlighted for the attention of the Court.

In contrast, counsel for the plaintiff rejected the assertion that the transcript references produced by the defendant support adverse credit findings and, as such, do not sustain a finding of a legitimate forensic purpose. In that respect it was contended that the plaintiff generally agreed with what is shown in the surveillance footage, further, it was contended that to criticise an absence of specification or certainty of memory recall as to matters that occurred over three years ago is not a sound foundation to doubt the credibility of plaintiff.

Following a consideration of the submissions advanced by the respective parties, together with reference to the transcript references relied upon and my own observations of the surveillance footage and the evidence of the plaintiff, the Court accepted the submissions advanced by the defendants, because there are significant discrepancies between the plaintiff’s evidence as to her physical capacity and that shown in the surveillance footage.

The service of the surveillance footage in advance would have hindered the legitimate forensic purpose sought to be tested in the light of those discrepancies, namely, the credit of the plaintiff. It follows that in order to properly test the plaintiff’s credibility, the surveillance footage could not be served upon the plaintiff prior to the trial. To do so may have permitted the plaintiff to tender her evidence, a consideration reinforced, in part, by the evidence given by the plaintiff in the trial.

I do not consider that the evidence in the footage assists or materially assists the plaintiff’s case. Hence, the defendants satisfied, in my view, the provisions of r 31.10(2)(a).

If leave were required of the Court, in the examination of the alternative case brought by the defendants, I would grant that leave.

An issue has been raised as to the exercise of the Court's discretion. Whilst not precisely defined, I have assumed that the submissions in that respect were directed to the provisions of ss 135 and 136 of the Evidence Act. I do not consider that those provisions and the considerations within them in either case should result in the Court refusing to receive the evidence in question.

There was no suggestion that the material was misleading or confusing. Further, the evidence is plainly relevant and for the reasons given with respect to r 31.10(1) the evidence has a reasonably high probative value. The timing of the receipt of the evidence had, no doubt, a prejudicial effect but, in all the circumstances, not such as to make the evidence “unfairly prejudicial”.

Therefore, to the extent that an application was before the Court under r 31.10 of the UCPR, it was granted. For completeness, to the extent that there was an objection to the evidence sought to be led in the form of the surveillance footage, the objection is overruled.

As to the other material tendered on the application, namely, surveillance reports and the issue of costs, the Court noted:

On 27 October 2020, the plaintiff sought to tender the report of Dr Fearnside dated 9 July 2020.

The plaintiff’s application is brought pursuant to r 31.28, which is extracted below:

It is common ground that the provisions of r 31.28(1) and (3) would exclude the admission of the report of Dr Fearnside by virtue of the report being served contrary to an order of the Court, unless leave were granted by the Court to receive the evidence by virtue of the exception contained in the preamble to r 31.28(3) and r 31.28(4)(a).

The Court has a discretion to admit relevant expert evidence despite failure to serve a report in compliance with this rule (or any order or direction): Cameron v Baker (Court of Appeal (NSW), August 1980, unrep); Dawson v Hall (Court of Appeal (NSW), 29 July 1994, unrep). The discretion conferred by r 31.28(4)(a) is limited by the requirement that the court is satisfied there are “exceptional circumstances” warranting the grant of leave. The rule does not set out what constitutes “exceptional circumstances” - that assessment must depend on a careful consideration of the facts of the individual case: AWA v Independent News Auckland [1996] 2 NZLR 184 at 186.

In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66], Campbell J considered the meaning of “exceptional circumstances”:

The mere fact that an opposing party is aware of the contents of the report is not necessarily sufficient to justify leave being granted to excuse non-compliance with the rule: Carey v Gruzman (Court of Appeal (NSW), 10 April 1991, unrep) at [10]). On the other hand exceptional circumstances, sufficient to justify leave, may exist where the opposing party is not only aware of the contents of the report but has had ample notice of its likely tender (for example as a result of prior cross-examination) and the tender would not give rise to significant prejudice: State of New South Wales v Tyszyk at [188]–[208].

In State of NSW v Tyszyk, in making a finding of exceptional circumstances, Campbell JA observed at [207]:

The plaintiff advanced the following submissions, consisting of relevant procedural background, in support of the existence of exceptional circumstances:

In written submissions dated 27 October 2020, the plaintiff advanced submissions critical of the late objection by the defendants, noting the report was served on 15 July 2020. Further, the plaintiff contended that upon review of all the medical evidence “it is difficult to see that the opinion of Professor Fearnside could take the defendants by surprise. Frankly, their own Dr Stephen provides a similar, poor, prognosis”. Particularly reliance was placed upon these two factors in support of a finding that “there can be no prejudice to the defendant[s]” in admitting the report.

In light of the emphasis placed on similarities between the medical evidence, as a contraindicator against a finding of prejudice, the relevant submissions are extracted in full below (together with references to the court book provided by the plaintiff):

The tender of the report was objected by the defendants. Whilst accepting procedural history summarised by the plaintiff, counsel for the defendants also noted that report was previously sought to be filed in the proceedings and, on 15 October 2020, the Common Law Registrar ultimately made a determination unfavourable to the plaintiff.

The Court’s ruling, in this respect, was provide via an email to counsel dated 28 October 2020. That email is extracted below:

The reasons for that ruling may be shortly stated:

Turning to the credit of the plaintiff, counsel for the defendants contended the Court would not accept the plaintiff as a honest or convincing witness. That contention was supported by reference to the plaintiff’s evidence during cross-examination and in particular, the contrast between her manner of answering questions prior to viewing the surveillance footage. Counsel for the defendants also sought that the Court place particular weight upon the surveillance footage in its assessment of the plaintiff’s credibility vis-à-vis her account of physical limitations, capacity to work and pain. It was also contended that the surveillance footage casts doubt upon aspects of the medical evidence that relied upon the plaintiff’s self-reporting.

Counsel for the defendants contended the plaintiff was “an entirely unconvincing witness”. She was “terse and guarded” in her answers. She would continually adjust her evidence where she perceived there may be risk to her in not doing so. This was particularly evident with respect to her evidence concerning her various work activities, the putting up of signs for the business after surgery and the proportion of customers who paid cash. During oral submissions, it was submitted: “her approach to questions seemed to be, I don't want to deny anything outright, but I don't really want to admit anything outright. She was quite aware, it would seem, of the risks in doing either”.

The ultimate example, it was contended, was an attempt by the plaintiff to “sweep away so much of what was inconsistent in her evidence when compared to the surveillance footage”. It was submitted that the plaintiff “insisted” that she had testified that her condition had deteriorated since 2017 (reference was made to T107.7). The transcript, it was submitted, reveals this too was untrue. The relevant portion (together with a portion of the cross-examination that follow) relied upon appears below (T107.7-26):

There were no accounts of worsening symptoms or disability in the plaintiff’s evidentiary statement, or the medical histories, and the court can be quite confident, it was submitted, that had there been any genuine deterioration, evidence would have been led of this chief.

There were numerous examples in the plaintiff’s oral evidence of her reluctance to admit the true position as relevant to her capacity, which may be contrasted with the capacity displayed in the surveillance footage. The defendants, in this respect, repeated earlier submissions advanced on the Markus application. In the surveillance the plaintiff can be seen:

It was contended that each of the above listed matters were put to the plaintiff during cross-examination and were either denied by the plaintiff in her evidence, or not admitted by her in her evidence, or is otherwise inconsistent with other aspects of her evidence.

It was also noted, the surveillance footage included footage of the plaintiff attending to a job in July 2017. In that footage, the plaintiff does not appear to be exhibiting signs of pain and/or physical limitation. This visual representation of the plaintiff at that time stands in contrast with her description of symptoms to her treating surgeon on 17 July 2017. The surgeon recorded she was “very much debilitated”. It was submitted there is no real room to think that they can be reconciled because of the pervasive inconsistency between her complaints to doctors and her apparent capacity.

Whilst the contrast between the two portions of cross-examination reveal “a more concessionary approach in the further cross-examination after the surveillance footage was admitted into evidence” (see, in particular, T106-111), it was contended that the plaintiff still refused to face up to the fundamental question of capacity. The defendants contended, in that respect, that the plaintiff is fit to work and she has no basis to be on a Disability Support Pension.

Prior to the surveillance footage, counsel for the defendant questioned the plaintiff at length about her application and knowledge of the Disability Support Pension, together with the requirement to declare earnings to the Australian Taxation Office. The plaintiff gave evidence that she had received the pension since 2010 and gave evidence that, since that point, she had always been in receipt of that pension.

Building upon that accepted position, counsel for the defendant turned to the plaintiff’s tax returns between 2016-2019. In summary:

Following that cross-examination, the following exchange occurred:

The plaintiff also gave evidence that she never declared income earned relating to scrap metal. That evidence appears below:

Even the plaintiff’s account that she had complete recovery from the November 2013 operation, it was submitted, must be strongly doubted. She was still complaining of back and hip pain 6 weeks after surgery (see CBP 241), her regular GP’s clinical notes reveal complaints of back and buttock pain in mid-2014 (see CBP 512) and the same GP’s notes record her symptoms from the fall in January 2015 with the note “exacerbate low back” (see CBP 521).

In all the circumstances, it was contended, the plaintiff would not satisfy the court that she has other than relevantly recovered, that is, recovered to the level she was or would have been functioning at but for the incident.

During oral submissions, counsel for the defendants was asked to consider the basis upon which, as a matter of evidence, the Court could properly come to doubt views expressed as to the existence of pain and its relevance to credit findings. Counsel for the defendants advanced the following submissions:

In terms of credibility and assessment of the plaintiff’s pain, that latter point concerning the plaintiff’s self-reporting to medical practitioners, particularly in light of the surveillance footage, attracted considerable attention in oral submissions, to which I now turn.

As a starting point, counsel for the defendants contended that the Court should place “considerable weight” upon the surveillance footage when compared to the medical evidence. Three reasons were advanced in that respect:

Without traversing submissions that will be advanced in the context of causation and/or damages, save for some minor overlap the following submissions seek to “cast doubt” upon particular opinions expressed in medical reports in light of contended unreliability of the plaintiff:

In support of submissions concerning the credibility of the plaintiff, counsel for the defendant also provided a document entitled “Detailed Observations & Medical Histories Schedule”. The observations are structured in chronological order, together with references to the relevant timestamp in the surveillance footage. Reference was also made to a selection of medical reports and clinical records, which it was contended support the submissions advanced by the defendants.

The defendants’ submission was as follows.

Without setting out every observation, noting the Court has viewed the surveillance footage, the below extract sets out the defendants’ observations with respect to medical evidence, in contrast to their observations of the surveillance footage:

In reply submissions, at the hearing, counsel for the defendant further submitted:

The high point in the defendant’s case in this matter, indeed probably the only material to which they can point as being in any way possibly contrary to the plaintiff’s case, is the surveillance undertaken on her over a period of 2 ½ years. It is the cornerstone used by the defendants to challenge the credibility of the plaintiff, as such, the plaintiff focused its submissions upon that evidence.

First, at the outset of submissions, the plaintiff emphasised there is no medical opinion concerning the effect of the surveillance material on any of the issues in this case. If that surveillance has been the subject of any medical opinion, which one would ordinarily have thought it would have been, such opinion has not been tendered in this matter. The submission of the defendant would appear to be that the surveillance material shows that the plaintiff is not telling the truth about the nature and extent of her injury nor about her ability to work. One would have thought that such matters would have been put to her treating doctors, such as Drs Davidson, Tait or Ho. More so, one might have thought that an opinion from Dr Stephen or Dr Cochrane (whose report has not been served or tendered) would have been obtained. This did not occur. I will return to this submission in the context off causation and damages.

Emphasis was also placed upon the period of coverage and the footage captured. The surveillance footage covers 16 days over a period of about 883 days. The defendants’ counsel put to the plaintiff a proposition to the effect that what was shown in the surveillance is what occurs all the time. She denied that. It was submitted, the surveillance is a “mere snapshot of her life”. It is 16 days out of 883.

Turning to credibility, it was contended, to have any real effect in this matter the Court would need to be satisfied that what is shown in the film is “so far removed from the evidence given by the plaintiff about matters shown therein that it would have some real effect upon her credit”. The plaintiff contended that reaching the requisite level of satisfaction is problematic for the following bases:

Other parts of the surveillance showed her doing lawn mowing, a couple of times a day as she said. Sometimes she does it without assistance, as she said she sometimes does. The plaintiff emphasised that these are all matters that she said she can undertake. Further, the surveillance shows that the work she does, generally comprising no more than 2 or 3 jobs on any given day, confirms that she cannot do the 6 to 8 jobs per day, 5 or 6 days per week, that she would do had she not been injured. The relevant extract appears below:

One also sees her shopping in the surveillance, which was not addressed by the defendants. That footage, it was submitted, is consistent with what is contained in her evidentiary statement at para 68. That is to say her son does the big weekly shop but she is able to do small shopping herself “every couple of days”. It shows her doing things she says she can do.

Before being shown the film the plaintiff generally agreed with most of the propositions put to her by senior counsel for the defendant. As has been submitted, the failure to recall some matters in 2017 should not impact upon her credit. That is particularly so in circumstances where the lifting of the lawn mower or the cutting of the hedges is not seen to occur in the surveillance footage until after 2017.

As the defendants placed particular reliance upon the contended contrast between the answers prior to the surveillance footage against the answers after seeing the surveillance footage, the plaintiff identified a series of transcript extracts supportive of the immediately preceding submission. The below table set out particular extracts identified by counsel for the plaintiff, to highlight the “approach” taken by the plaintiff.

It was contended that the plaintiff was an honest witness. She answered to the best of her knowledge. At times she may have been unable to readily provided specific times, but she was able to indicate acceptance and/or denial of propositions put to her.

She volunteered, without being pressed and obviously without anybody being able to have such knowledge, that on a couple of occasions she had been paid in cash and not declared it because she thought there was a limit that you could in fact do that for. But the trousering of a couple of $50 handed to her is not the sort of matter that should cause the Court to reflect adversely upon her credit. Certainly, she did not say that she did it to avoid tax, which would have to be the case since she did not earn anything like the taxable limit from this work. Nor did she do it to keep it from the Department of Social Security.

Counsel for the plaintiff further contended that, if the defendants wanted to suggest that the surveillance shows the plaintiff as being an exaggerator and able to do much more than she claims, then they ought to have obtained medical evidence on the point. It was submitted that the Court should reject the submission by the defendants that “[t]his is not a matter where it will apparently be necessary to provide the material to any of the doctors, but if that is considered essential it can easily be done”. That submission, it was contended, almost recognises the problem with the surveillance footage and then suggests that such evidence can be obtained. Yet no doctor has been subpoenaed in this case.

As to the medical evidence before the Court, counsel for the plaintiff relied upon the consistency of that evidence: “all doctors who had provided a report in these proceedings accept that she has a significant injury to her lower back that is causing her a high degree of pain and that that will continue”.

During closing submissions, counsel for the plaintiff replied to some particular submissions advanced by the defendant, which have bearing on credibility:

As to the plaintiff’s demeanour, counsel for the plaintiff submitted:

For completeness, during the course of closing submissions, the Court raised the following with respect to making a finding as to credit based upon observations via AVL (T143-144):

The defendants’ contentions as to the credibility of the plaintiff traversed several categories which broadly concerned the plaintiff’s capacity to work and related considerations as to her reliance on assistance from her son and her level of pain when undertaking lawn mowing and/or gardening work.

As to capacity to work, the sub-categories included the plaintiff’s evidence as to bending, pushing a lawn mower on “slopes”, jumping on and off the ute, lifting equipment and the number of jobs she undertook. It was contended that the contrast between the plaintiff’s evidence as to those categories prior to seeing the surveillance footage and after, casts significant doubt upon the credibility of the plaintiff as a witness.

Whilst conceding some aspects of the plaintiff’s evidence after viewing the surveillance footage may be properly described as “incorrect”, counsel for the plaintiff disputed that a drastic contrast existed between the two components of the plaintiff’s evidence such that would support the adverse credit findings sought by the defendants, and that, generally, the plaintiff did not challenge what was depicted in the surveillance footage.

I now turn to my conclusions in that respect, by examining each area of capacity/incapacity in turn, for the purpose of analysing the parties’ cases on credit. The ultimate conclusion on credit must lie with an overall assessment of the evidence.

Prior to the surveillance footage, the plaintiff gave evidence that bending was an aspect of lawn mowing work and involved in her gardening and edges work. As to the latter, she said “I do as little as I can, bending over, I find it very hard”. In response to the suggestion that in the course of her would she ”can bend your back 90 degrees and hardly bend your knees”, she said “no”. Following that answer, she retreated away from that emphatic response. She stated she could not recall bending in that manner and said she was not sure how she positioned her knees or, for that matter, how she would bend.

It should also be noted that the plaintiff emphasised the difference between the occasional bending associated with lawn mowing work and the “continual” bending associated with mopping and vacuuming. She said “I can bend over to pick something up but I can’t bend over and keep bending over”. When asked whether bending was causing pain, at that time, she said it was. It was suggested if she was in pain she would not be doing that kind of work. She rejected that assertion.

The surveillance footage of 4 April 2018 and 16 December 2019 have several examples of the plaintiff bending her back fluidly and without restriction to 90 degrees over the course of one day. (There is also footage of her bending in July 2017.)Following the playing of the footage, the plaintiff accepted that she can be seen bending her back and, further accepted, she can be seen bending without protecting her back (ie from the knees). It was again suggested if she experience pain she would not bend in that manner. Again, consistent with her evidence prior to the footage she rejected that assertion.

My observations with respect to the plaintiff’s evidence as to bending are that her evidence was not satisfactory. She was cross-examined at length about her capacity to bend in different scenarios. She did made concessions that she could bend in particular ways. However, prior to seeing the footage, the plaintiff did clearly exhibit significant reservations as to her capacity to bend “90 degrees”, whereas, upon viewing the footage – she accepted she was, in fact, bending in that fashion with some regularity. Footage reveals her bending without objective signs of pain apparent in the video.

Prior to the footage, the plaintiff gave evidence that her son did mowing on sloped lawns. She accepted that sometimes she needs to do slopes, she qualified her answer “but I don’t take many jobs like that”. The plaintiff also noted that her son would “usually” help with mowing slopes.

The surveillance footage showed the plaintiff pushing a lawn mower uphill on at least three occasions on 10 November 2017, 4 April 2018 and 5 June 2018.

During cross-examination, whilst not denying her conduct in the footage, the plaintiff engaged in semantics as to what constitutes a “hill” or “slope” and attempted to distance herself from her earlier evidence. The plaintiff did not accept the description of “uphill”, but said was sure she had pushed a mower uphill “once or twice”. She also told the Court that she recalled giving that same evidence on the first day of cross-examination. However, when pressed further about whether that was in fact her evidence, namely, the description of “once or twice”, she said “I can’t remember”.

The plaintiff’s evidence prior to the footage, did not incorporate the formula of “once or twice”. Prior to seeing the surveillance footage she did qualify her initial statement that she needs to do slopes sometimes by stating: “but I don’t take many jobs like that” which is, to an extent, consistent with an admission as to lawn mowing on slopes on an irregular basis. Strictly speaking this is also not contrary or inconsistent with the evidence that her son “usually” assists with slopes.

Nonetheless, my overall impression is that the plaintiff’s evidence as to slopes in many respects strained incredulity as she sought to distance herself from the footage.

Prior to the surveillance footage, the plaintiff gave evidence that she had “in the past” got herself onto the tray of ute without assistance. She said she would do this “occasionally, not very often”. She also described a process of stepping on the “towbar” to step up and down. She was questioned about whether she sometimes jumps to the ground, to which she responded “not that I recall”. However, when pressed, accepted it as possible but would not attribute a number to that. She said she could not recall doing it on a number of occasions.

In the surveillance footage there are two instances of the plaintiff jumping down from the tray of her utility to the ground below at 9.49am and 12.45pm on 8 November 2017. After viewing that footage, the plaintiff accepted that she did that but qualified her answer by saying: “I don’t remember doing that”.

This aspect of her evidence is again illustration of the plaintiff being guarded in her answers and adjusting her evidence is she perceived there may be a risk to her not doing so. The surveillance footage often drew a stark adjustment.

Prior to the surveillance footage, the plaintiff gave evidence that she had “not recently” lifted the lawn mower off the back of the ute without the ramp. Whilst she accepted it was something she had done in the past, her memory was it was sometime before the incident. She could not recall doing it since the surgery in 2016. In response to a question that she can lift the lawn mower without the ramp, she said “no”.

The surveillance footage has multiple examples of the plaintiff lifting the lawnmower off and on the ute without a ramp on 8 and 9 November 2017 as well as lifting and emptying apparently full grass catchers on 27 July 2017, 3 April 2018 and 30 November 2018.

The plaintiff again accepted that she is seen on the surveillance footage lifting the mower. However, she qualified her response with two statements: “I don’t’ remember doing it” and “I usually do use the ramp”. After accepting that she can be seen lifting the mower from ground level with straight legs, the plaintiff said “yeah, very difficulty” (sic). She was also readily accepted that she lifted the grass catcher stating “well you have to do that when you mow lawns”.

The plaintiff’s prior surveillance footage evidence was inconsistent with the surveillance footage. In the evidence after the surveillance footage was shown to her, the plaintiff once again provided qualifications to her acceptance in an apparent effort to distance herself from the visual medium which were unconvincing and strained credibility.

Prior to the surveillance footage, the plaintiff did not accept she has been doing “multiple jobs per day on weekdays since 2017”. As to whether she worked on weekdays she said “Occasionally. Not regularly”. In the context of questions about her work in 2018, the plaintiff gave evidence that the majority of her work was conducted on the weekends and that was also the time in which her son was available to assist.

After viewing the footage, the plaintiff accepted that she can be seen working on a number of jobs per day on a number of days. However, she qualified her response “I've said that when I tried - when I went back to work I tried to do more than I could, and I paid the price for it”. As to the footage of her doing multiple jobs in 2018 and 2019 on a single day she said: “I've said that. I've tried from time to time to do more than I can. I'm on heavy medication when I'm doing it, before and after, all day long”.

In the footage the plaintiff is seen doing numerous jobs on weekdays and her son is not present on any occasion. It is true, it should be noted, that the plaintiff never gave evidence that her son was with her for every job, or as to the ratio of jobs completed on weekdays as opposed to weekends but the evidence before and after the footage is inconsistent overall

The surveillance footage demonstrates a volume of work which sits ill with the plaintiff’s evidence as to her incapacity to work.

The defendant correctly submitted that the plaintiff’s evidence before and after the surveillance footage reveals a shifting of evidence to adjust to the inconsistencies in her account. So much is evident from both the terms of her answers as I have discussed them and from the manner in which she gave her evidence. As mentioned, her evidence was somewhat collaborated to avoid risk before the surveillance footage and further adjusted afterwards.

Further, the surveillance footage is often inconsistent with the plaintiff exhibiting pain or physical limitation and demonstrates some resumption of functionality at pre-incident level.

Despite the evidence as to the underlying existence of pain there was the absence of facial expressions or the movements of the body demonstrative of pain being felt during the discharge of work.

The nature of the work and the activities shown in the footage, all of which are arduous, must raise doubts about the level of pain experienced at the time the footage was taken and the reports of medical professionals as to the same. The contention that the discharge of that work was necessary for financial reasons has a superficial attraction (in the sense of working through the pain) but some doubt must be cast upon that explanation because of her prior evidence of her experience in relatively light work as a bookkeeper (although some medical reasons were advanced for not taking up that work).

The credibility of the plaintiff’s evidence as to her afflictions is also strained by the volume of work undertaken by her in the absence of her son and the passage of her evidence in which she insinuated her condition had deteriorated since 2017 (see transcript at 107).

Her evidence as to her availability for a disability pension must, in the light of the evidence, be doubted.

My overall impression is that the plaintiff’s evidence as to the extent of her incapacity and as to the extent of the pain she expressed are exaggerated and that her concessions were tailored for the avoidance of exposure as to the true state of her capacity for work (including arduous work). I do not find that the plaintiff’s evidence was untruthful as such but that the content and manner of it reflected very poorly upon her as a witness. I consider her to be an unreliable witness. In particular, her evidence is unsatisfactory as to the existence of incapacity and pain. This necessarily impacts her reports to medical professionals as to those states of being from time to time, and overall, suggests that the plaintiff has a capacity for even arduous work from the start of her lawnmowing business, even though she may have suffered some ongoing pain managed by medication..

In Mr McDowell’s evidentiary statement, he gave the following evidence as to the assistance he provided the plaintiff following the incident:

During cross-examination, Mr McDowell gave the following account of the plaintiff’s lawn mowing activity:

Following a concession that he did not now how much lawn mowing work the plaintiff was doing in 2015, Mr McDowell appeared to reluctantly accept that he could not be certain, as stated at para 30 of his evidentiary statement, the plaintiff was only doing administrative tasks. That passage of cross-examination appears below:

Counsel for the defendants pressed Mr McDowell about the error he corrected at para 35 of his statement:

When questioned about the timing breakdowns provided in his evidentiary statement, with respect to hours spent doing chores, Mr McDowell consistently stated the figures provided were “an average”. He also gave evidence that his brother assisted on occasion.

Counsel for the defendants contended that the evidence of Mr McDowell “regrettably bore the same character as that of the Plaintiff”. His statements of the what chores he did, and more importantly why, it was submitted, could not be reconciled with the plaintiff’s demonstrated strong physical capacity in 2015, and since 2016. Reference was made to T85.1-13, T87, T88 (extracts appear above). It was also contended that his estimates of time spent years earlier, as a teenager, were also “completely unconvincing” in any event.

As to the evidence of Mr McDowell, counsel for the plaintiff submitted:

I do not consider Mr McDowell to be a dishonest witness. Whilst occasionally reluctant to deal with issues with which he was confronted during cross-examination, he did often make frank concessions. However, some of the retractions from his evidentiary statement do cast doubt as to the reliability of his evidence, in particular his mother’s need for domestic assistance.

On 20 January 2015, the plaintiff attended the shopping centre to shop at the supermarket at around 4pm. On that occasion she parked her utility in a vacant bay within a row of car park spaces to the west of the supermarket. The row consisted of two parking bays facing a northerly direction. The parking bay on the western side of that row was occupied by a vehicle (“the western bay”). The parking bay on eastern side was vacant; that is the bay in which the plaintiff parked (“the eastern bay”). For ease of reference, the Premises Plan annexed to the lease is extracted below, together with an annotation around the relevant row of parking bays.

Following the completion of her shopping, which consisted of “a few groceries” for her family, the plaintiff returned back to her utility. The plaintiff proceeded to pack her groceries via the passenger side of her vehicle, which was facing the western bay. Whilst transferring her shopping into the front passenger seat of the utility, the vehicle parked in the western bay pulled out and left the western bay vacant. A photograph of that vacant western bay, albeit post-incident, appears below.

Having completed the task of packing her groceries into her vehicle, the plaintiff took a step back into the vacant western bay, in order to property position herself to shut the passenger side door. Upon taking that backwards step, the plaintiff’s right foot and part of her right leg went down into an uncapped drainage pipe to a depth of about 20 centimetres. The plaintiff deposed: “My foot disappeared down the hole and I fell backwards and landed on my bottom. I felt immediate pain in my right leg and back”. A photograph of the uncapped drainage pipe (also referred to as an uncovered drain pipe) taken by the plaintiff shortly after the incident appears below.

At the time of the incident, the plaintiff was wearing thongs.

On 21 January 2015 at 12.15pm, the Store Manager at Coles, Brent Mattingly sent an email communication to Ms Skinner that advised: “a customer had an incident in the car park Yesterday [sic] falling down an exposed drain pipe. My team placed a call to get this rectified however I thought you might like to know”. A photograph of the exposed drain was provided via a separate communication at 3.43pm.

Later that same day at 4.09pm, Ms Skinner forwarded her communication with Mr Mattingly to Danielle Nohra and Thomas Phillips, employees in the Coles Property Team. In that communication she advised:

Mr Phillips, Property Cadet within the Property Team for Coles, replied to Ms Skinner’s email at 4.22pm. He said: “I believe Matthew has already logged a work order; however I have spoken to maintenance to ensure they have someone out there as a matter of urgency”.

As mentioned, on 21 January 2015, Ms Skinner prepared an Incident Report. The report noted that the location of the incident was in the “Car Parks” and that the weather conditions were “Fine”. The plaintiff was identified as the injured person.

The following description of the incident was provided:

The Incident Report indicated the “Possible Reasons For Fall” as “[o]pen drain in car park”.

The injury was described as bruising and lacerations to the legs and ankles of the plaintiff.

The report also confirmed that the plaintiff sought medical treatment. She was taken to a doctor. It was also noted that “first aid [was] given by Coles staff”.

Under the heading “Additional Information”, Ms Skinner recorded the details of a follow-up conversation she had with the plaintiff on 5 February 2015. She relevantly recorded:

The Incident Report also included a floor plan showing the location of the incident. The floor plan is extracted below. Ms Skinner identified the location of the incident by putting an “X” in the car parking space in which the fall occurred. Ms Skinner’s original marking was black, however, to assist with viewing, the relevant annotation has been overlayed with colour.

On 30 January 2015, Ms Skinner attended the shopping centre to conduct her monthly inspection. She noted the drainage cap had been replaced.

As mentioned, RHC conducted monthly inspections of the shopping centre.

Ms Skinner deposed that Kinsley and/or RHC regularly corresponded with Coles “regarding their obligations” under the lease, “including Coles’ obligations with respect to the repair and maintenance of the car park”. I turn to examples of the correspondence between Coles and RHC dated 15 August 2012 and 6 September 2012:

RHC produced a “Shopping Centre Inspection Report” for the shopping centre (“the inspection report(s)”) on a monthly basis. Copies of the inspection reports prepared by Ms Skinner for the period 10 March to 16 September 2014 were before the Court. The reports produced by Ms Skinner were in one of two different formats: photographs of issues of concerns and/or RHC Template Inspection Report, which took the form a checklist. The inspection reports provided to the owners on a monthly basis. Save for that requirement for a monthly inspection, the format of the report was at the discretion of RHC.

On 10 March 2014, Ms Skinner produced an inspection report that consisted of photographs. The report identified the following issues of concern that required attention and/or rectification:

In the inspection report dated 24 July 2014, Ms Skinner utilised the RHC Template Inspection Report.

The RHC Template Inspection Report, assesses the condition of 98 items, which were divided into the following categories:

Each item is rated as either “not applicable” or “acceptable”. The Centre Manager conducting the inspection had the option to provided additional comments with respect to any item.

As items relating to the car park would be categorised under the heading “External”, I note the adverse findings under that heading. The following items attracted comment: road surface and graffiti (items 1 and 15, respectively).

On page 2 of the report, the following appeared:

In the inspection report dated 20 August 2014, Ms Skinner utilised the RHC Template Inspection Report.

Under the heading “external”, the following items attached additional comment: road surface, graffiti and “other” (items 1, 15 and 28). Those comments included the following:

The inspection report for December 2014 was not annexed to Ms Skinner’s statement. However, she deposed:

The parties initially filed separate statements of issues in dispute outlining issues of dispute with respect to, inter alia, duty (in particular, issues concerning occupation), causation, nature and extent of the plaintiff’s injuries, contributory negligence and damages.

The plaintiff’s case was that the defendants owed the plaintiff a duty to take reasonable care to ensure that she was not exposed to unnecessary risk of injury. In summary, it is submitted:

By the close of submissions, the parties were in agreement as to the duty owed by the respective defendants and, in light of the Joint Expert Report, any dispute as to the seriousness of the plaintiff’s injuries fell away. As to duty, counsel for the defendant conceded that both sets of defendants owed a duty of care to the plaintiff and the duty arose from “the circumstances in which they were each, in their own way, to some extent, occupiers, in the sense conventionally recognised under the common law”. As such, “it could not be said on behalf of either sets of defendants that they had no duty to entrants to that property”.

The plaintiff drew a distinction between Coles as occupier and the owners as the relevant owners of the premises. However, for the purposes of determining liability, senior counsel for the plaintiff recognised that the submissions advanced for the defendants had, in substance, accepted that Coles was the relevant occupier. For example, the following exchange with the Court occurred:

Turning to the scope and content of each of the duties, whilst both sets of defendants conceded that Coles had assumed responsibilities for maintenance, subject only to matters of structural or capital repair, it was submitted that the Court should approach questions of liability with respect to Coles and the owners, respectively, “independently”. In that respect, it was also submitted “issues about respective responsibilities do not need to be determined on the factual and legal issues in proceedings”.

It being conceded that the defendants, respectively, owed a duty of care to the plaintiff, the primary area dispute remaining in the plaintiff’s liability case was causation. Whilst a joint document was not filed, by closing submissions, counsel for the defendants confirmed the crux of the dispute with respect to liability was one of causation. As to the issue of causation, senior counsel for the defendants submitted:

Section 5B of the Civil Liability Act 2002 (NSW) requires that the risk of injury, if appropriate precautions were not taken, be foreseeable and not insignificant. In the plaintiff’s submission there can be little issue but that that risk was clearly foreseeable. The relevant risk of harm in this matter was identified as the risk that a person such as and including the plaintiff could step into a hole such as that that was uncovered and sustain injury. The defendants conceded that risk was foreseeable and not insignificant.

The position of the defendants is that the defendants, in their respective capacities, had taken reasonable precautions, which constituted an adequate response to the risk and there is no breach of duty by either Coles or the owners. However, the defendants concede that risk was foreseeable and not insignificant.

It might also be noted that the defendants’ arguments as to contributory negligence was abandoned at the time of closing submissions. The relevant exchange appears below:

I will return to the dispute vis-à-vis damages at a separate juncture, after considering the disputes as to liability.

As mentioned, it was uncontroversial that the defendants as the occupiers of the car park at the time of the incident, the defendants each owed a duty of care to the plaintiff. The duty owed by an occupier is to exercise reasonable care so that the premises are safe for pedestrians and other users: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 at [488]; Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234 at [24].

I find that the defendants owed a duty to the plaintiff at the time of the incident as occupiers of the car park.

However, for the purposes of breach of duty, to which I will now turn, the scope and control of the breach varied as between the defendants.

The question of breach is governed by s 5B of the Civil Liability Act. The relevant sections of that Act are set out in Pt 1A Div 2 and extracted below:

Consistent with my earlier observations, it has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the Civil Liability Act, because it enables assessment as to whether that risk was “foreseeable” for the purposes of s 5B(1)(a) of the Civil Liability Act, whether it was “not insignificant” for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35].

In a case where different risks are present, particularity is required: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]. That particularity requires some articulation of the general causal mechanism of the injury sustained: McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [266] per Garling J (in dissent, but not on this point).

As earlier found, the relevant risk of harm in this matter was the risk that a person such as and including the plaintiff could step into a hole such as that that was uncovered and sustain injury.

As earlier mentioned, the defendants do not dispute that the risk of harm of injury in the car park was foreseeable for the purposes of s 5B(1)(a) and that the risk of harm was “not insignificant” for the purposes of s 5B(1)(b).

I find the requirements of s 5B(1)(a) and (b) are satisfied.

To establish breach of duty under s 5B(1)(c) of the Civil Liability Act, the plaintiff has the onus of demonstrating that a reasonable person in the defendant’s position would have taken those particular precautions in response to the risk of harm.

Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the Civil Liability Act: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38]. The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197].

The Court must turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk. As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47], s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.

In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]:

In Neindorf v Junkovic [2005] HCA 75, Gleeson CJ observed (at [8]):

It is also apt to recall what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 at [23]-[24]. The comments were directed to dwellings, but apply equally to outdoor amenities:

Bryson J (Meagher and Heydon JJA agreeing) warned in Waverley Council v Lodge [2001] NSWCA 439 at [29] about the difference between foresight of risk and an obligation to act on the risk:

As to principles relevant to breach of duty, the following summary of principles set out by Basten JA in Weber v Greater Hume Shire Council [2019] NSWCA 74 is apposite (at [94]-[101]):

The plaintiff claimed that the defendants failed to “take any or any adequate precautions for the Plaintiff’s safety”. The precautions to be taken were not otherwise particularised.

The plaintiff advanced the following submissions:

When considering s 5B(2) of the CLA, the plaintiff submitted:

During the plaintiff’s opening statement, it was stated:

During closing submissions, counsel for the plaintiff supplemented the above submissions with the following:

Turning to the question of breach, counsel for the defendants advanced the following submissions.

As to Coles, it was contended that there was no longer any issue or submission to be made as to breach, the issue of liability being confined to causation under s 5D of the Civil Liability Act.

Nonetheless, it was contended the Court should identify the precautions Coles should have taken in order to properly address the question of liability.

As to the owners, regard must be had to factors:

By taking those steps, it was contended, the owners had adequately discharged their duty to take reasonable precautions for the purposes of s 5B of the Civil Liability Act.

It was also contended that in assessing the same, the fact that the owners were “owners of commercial property upon which there were other independent commercial operators there operating and occupying the property pursuant to lease with associated obligations for maintenance for all of the property”, should be taken into account.

The defendants have properly conceded the question of breach with respect to Coles. The provisions of cl 29.7(a) of the lease plainly provide that Coles was required, at its expense, to repair and maintain the car park.

The risk of harm in this matter is the risk that a person would step into a hole that was uncovered and thereby sustain injury. The hole was located in the car park and, self evidently from the photos of the hole after the incident, was in need of maintenance or repair.

The reasonable precautions to be taken by Coles in that respect, having regard to its obligations under the lease involved, in order to properly maintain and repair the car park, regular inspection of it.

Thus, a system of inspection by means of cleaners or other persons to inspect the car park would have been required as reasonable precautions. There would seem to be no dispute that a daily inspection would have been reasonable, workable and appropriate in that respect.

There was no evidence of a system of inspection by Coles, but there was evidence of Coles being aware and reminded of its obligations in that respect before the incident as to the state of disrepair of the car park and Coles’ responses taking steps under the lease. The hole into which the plaintiff stepped was indicative of a state of disrepair. Coles was required to take reasonable steps to effect maintenance and repair of the car park.

In those circumstances, it may be concluded that Coles failed to take reasonable precautions, either by failing to have and applying any system of inspection, maintenance and repair, or adopting a system which was wholly inadequate in its terms or application in that respect for the purposes of s 5B of the Civil Liability Act.

I consider the submissions of the owners to be correct in this respect, namely, the owners had adequately discharged their duty to take reasonable precautions for the purposes of s 5B. The owners were owners of commercial property which was leased to a large commercial operator with specific obligations to maintain the car park. They reminded and pressed Coles to fulfil those obligations and with reasonable frequency, inspected the condition of the property to ensure the obligations were met and took steps to remediate the property including the car park either directly or through the contractor.

The question of causation is governed by s 5D of the CLA. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below:

The application of the CLA requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the CLA.

The relevant authority on causation was summarised in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [85]-[94], which I adopt and extract below:

I will turn to the judgment of the High Court in Strong below.

As to causation the following submissions were advanced:

The following aspects of the evidence before the Court were also highlighted in support of the plaintiff’s claim:

Having regard to the totality of the evidence it is clear that the hole into which the plaintiff inadvertently stepped was a danger of which the defendants ought to have been aware and ought to have been either covered or guarded so that persons could not accidently step into it. In causing the cover to be removed or failing to have a cover on the hole or in failing to barricade off the hole whilst it was uncovered the defendants have been guilty of negligence.

It is the plaintiff’s submission that the requisite elements required to establish causation under s 5D are established in the present case.

The only aspect that arises for determination in relation to the liability assessment of Coles' position is under s 5D of the Civil Liability Act and that is causation. The question, in that respects is as follows:

As to the issue of causation, with respect to Coles, counsel for the defendants submitted:

During the course of submissions, counsel for the defendants made a relevant concession with respect to Coles:

As to the issue of causation, with respect to the owners, counsel for the defendants submitted:

Attention was directed by the parties to the judgment of the High Court in Strong. In that matter, the appellant suffered serious spinal injury when she slipped and fell while at a shopping centre. At the time she was in the sidewalk sales area outside the entrance to a Big W store. That area was under the care and control of the first respondent, Woolworths Limited.

The appellant was disabled, being an amputee, who walked with the aid of crutches. The tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped from under her and she fell heavily.

Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area. The issue in the matter concerned the familiar difficulty in slipping cases of establishing a causal connection between the absence of an adequate system of cleaning and the plaintiff’s injury when it was not known, such as in this case, when circumstances producing the risk of harm arose (in Strong this concerned the deposit of the slippery substance).

The scope of liability issue arising under s 5D(1) of the Civil Liability Act did not represent a particular difficulty in Strong, attention being focussed upon the question of factual causation. Under s 5D, factual causation required proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm: Strong at [20].

The nature of the issue to which the Court directed attention is found at [32] of the judgment of the majority of the Court as follows:

The resolution of that issue commenced with the following passage of the judgment which was central to the submissions of the defendants in this matter (at [34] and overall):

As to the determination of the matter was predicated upon that process of reasoning.The High Court found at [37]-[38]:

There is no evidence as to when the hole into which the plaintiff stepped became uncovered or broken. The evidence reveals that in the late afternoon of 20 January 2015 the plaintiff stepped into the hole which, at that time, had no cover. A photograph of the hole in that state was taken a short time later.

I accept, as submitted by the defendants, that caution should be exercised in drawing inferences from the bare fact of a photograph of the hole. Particular caution of should be taken in drawing an inference that, because no screws were apparent in the screw holes or broken pieces of the cover visible, that Coles had, in fact, removed the broken cover and had failed to replace it, thereby ending any real issue as to causation.

However, in my view, the fact that the photograph illustrated that the hole was open, there were no apparent screws or broken pieces of the cover remaining and the considerable debris between the two concentric rings of the hole leads to the reasonable inference that the hole had been exposed at least for a period greater than the day of the incident. There is no contradictory evidence. It follows that I am satisfied, on the balance of probabilities, that the hole had been open at least since the previous day or although most likely for a longer period sufficient to enable the cover or broken cover and screws to be removed and for the debris to accumulate in the hole.

In those circumstances, and as properly conceded by senior counsel for the defendant, the judgment in Strong does not defeat the plaintiff’s case against Coles on the issue of causation. The hole into which the plaintiff inadvertently stepped was a danger of which the defendants ought to have been aware and ought to have covered or guarded so that persons could not accidentally step into it. The precautions which I found to be reasonably required by Coles would then have obviated or mitigated the risk of harm.

Thus, factual causation for the purposes of s 5D of the Civil Liability Act has been established. In failing to cover the hole or in failing to barricade of the hole whilst it was uncovered, Coles is guilty of negligence.

The scope of liability issue did not arise in this case. In any event, it is appropriate for the scope of the occupier Coles’ liability to extend to the harm caused to the plaintiff given that the car park was, in essence, provided by the occupier to members of the public for the purposes of accessing the Coles’ store (which the plaintiff did).

It is strictly unnecessary to consider the question of causation with respect to the owners given my earlier finding. However, it may be observed that the obligation upon the owners would have been less than that falling upon Coles because, as senior counsel for the defendants contended, the issue of maintenance was largely delegated to Coles. The obligation to oversee the process fell upon the owners by way of an overview of the process to ensure compliance with the lease. A duty to conduct inspections in that context was done through the owner’s commercial agents. This was done on a monthly basis. Significant doubt must be held as to whether the conduct of inspections on that basis would have detected the risk of harm and whether the plaintiff’s established factual causation with respect to the owners.

It follows that Coles is liable in negligence for any injuries, loss or damage occasioned to the plaintiff arising out of the incident. The issue of contributory negligence was ultimately not pursued by the defendants in final submissions though they pleaded the same in their defences. I make no finding of contributory negligence.

Given the conclusions earlier reached with respect to the owners, I do not find the owners liable in negligence with respect to the incident.

I note that the position adopted by the defendants results in the cross-claims falling away.

I will now turn to the question of damages.

At the time of this accident the plaintiff was a 48 year old lady. She had had a problem with her back some years prior to this accident. That problem had completely resolved.

Before this accident the plaintiff had, for many years, been on a disability support pension. However, as is made clear in her statement she wanted to get back to work around the end of 2014 as she said she found it difficult to be on the pension and was feeling isolated and had lost her independence.

Her statement discloses that she had left school at the end of year 9. After that she had generally worked in manual work, often work that required significant physical input. However, she had worked as an office manager and bookkeeper.

Her case is that she cannot do those types of clerical works because, as the medical evidence demonstrates, she has had difficulties standing, sitting or walking for long periods of time. It was not put to her that that was not the case.

Accordingly, her desire was to work in her own business where she could be flexible having regard to her Buerger’s disease problems and it was something that she was capable of doing. Accordingly, she commenced a lawn maintenance and garden care business.

For that purpose, she put out flyers around her local area attached to telegraph poles. She started receiving work.

Her claim is that but for the accident she would have worked 5 to 6 days a week doing on average 6 to 8 jobs a day earning between $50 and $60 per job.

The plaintiff, in 2015 and then again in 2017 (after the operation to her spine in June 2016) returned back to doing some lawn mowing work. However, she requires the assistance of her unpaid son or partner. It is clearly not something that she is going to be able to do in the long term. She has ongoing pain and restrictions in her back. The fact that she has in fact even tried to return to work, both soon after the accident and in more recent times, is a testament to her desire to work if at all possible and her stoic nature. It is also a testament to her need to earn income beyond that provided by the pension.

If the defendants seek to suggest that there was other work that she could do and which was available to her or that, medically, she is capable of doing more than that which she currently does, then that is a matter the onus of which falls on the defendants.

Similarly, if the defendants wish to assert that pre-existing conditions that she suffered from would have meant that she could not work any more than she currently does then, again, the onus falls on the defendants to prove that issue: see Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.

There is no medical evidence from any of the defendants that provides such an opinion. The plaintiff was required by the defendants to be examined by Dr Cochrane, a neurosurgeon. That appointment was undertaken on 15 March 2019. No report from a neurosurgeon has been served. An inference that his report would not assist the defendant’s case is irresistible.

Otherwise, the only other medical evidence on which the defendant relies is the report of Dr Stephen.

The Court cannot substitute its own opinion for evidence: see Strinch v Singh [2009] NSWCA 15. Thus, in the absence of a medical expert commenting upon the surveillance footage, it was contended “the Court will not be assisted by the surveillance on the issue of economic loss or domestic assistance”.

Perhaps the most telling medical document in this matter is the joint report prepared on 22 September 2021 by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff and Dr John Stephen, an orthopaedic surgeon qualified on behalf of the defendants. The report shows that both orthopaedic surgeons are almost entirely in agreement.

They agree:

There was some disagreement as to whether she requires further surgery.

The other very telling evidence are the records of the general practitioner, Dr Ong. These notes commence at CBP 1, page 515. On CBP 521 the records record the date of the injury on 5 February 2015. From that point forward to when she had her operation in the middle of 2016 and beyond, up to the end of the records at CBP 572, there is continued reference to back pain. These references also include the prescription of powerful analgesia such as Lyrica, Mobic, Endone, Targin and so on.

The notes also record, particularly after the operation in 2016, that the plaintiff was prescribed pain killing injections in the form of nerve blocks and facet joint injections. The notes also record back pain radiating down to both legs.

The GP notes confirm the serious and ongoing nature of the complaints that the plaintiff made in relation to her back. It was not suggested to her that when she made these complaints she was lying to her GP. It was not suggested to her that she did not need to take any pain killing tablets but was doing it for some nefarious reason. The Court would have no reason to find other than, consistent with the plaintiff’s own history, that she has ongoing significant problems with her back.

The plaintiff also relies upon reports from the doctor who initially treated the plaintiff for a back problem prior to this accident, Dr Davidson. In the latter report he notes that the plaintiff’s radicular symptoms were completely relieved following that earlier operation.

Dr Davidson provided a further report, post-dating the accident. It is dated 29 January 2018. In that report, on the second page, he noted that an MRI scan taken in July 2015 showed a right sided L5 Pars defect. A Pars defect is a fracture of the lower part of the spine. In addition, the doctor found a grade 1 spondylolisthesis, a situation where one vertebra slips forward onto the bone of the vertebra beneath.

He was satisfied that the Pars defect was acquired as a result of her fall. It was this that led to her back operation in June 2016.

The management of her condition was transferred from Dr Davidson to his colleague, Dr Tait. Dr Tait has provided a number of reports starting at CBP 243. It was Dr Tait who carried out the surgery to her spine in June 2016.

A report of Dr Tait of 16 October 2015 (CBP 243) noted that she had bilateral leg pain worse on the right. It radiated to the foot and affected all toes. She had numbness and paraesthesia.

He also recorded that she had great trouble walking but was still able to mow 6 to 8 lawns a day as she found it easier to walk leaning forward with the mower. He noted that she was taking Lyrica and Mobic.

A report from Dr Tait of 26 September 2016, 3 months after her L5/S1 fusion operation (CBP 246), recorded that she was still experiencing pain across her lumbosacral junction, worse on the right than the left. He noted that it was extending to her foot. In a further report of 13 February 2017 (CBP 248) Dr Tait noted that there appeared to be compression of the L4 nerve root seen on a CT scan. That compression of the nerve would of itself explain her pain and the radiation into her legs.

His report of 10 April 2017 which was prepared nearly 10 months after the operation, noted that he was disappointed with the results. He also noted that nerve root injections created terrible pain for her and that the radiating pain into her legs was continuing.

The plaintiff was referred to Dr Ho, a pain rehabilitation specialist. His report is dated 4 October 2016. He noted that she had been referred to him for management of chronic back pain. He took a history of stabbing pain over the lower back radiating to the hips. It was worse with activities such as prolonged sitting and standing. It interfered with her sleep and mood.

On the second page of his report Dr Ho noted that there were physical capacity restrictions including carrying out her domestic assistance. He said that she denied any anxiety or depression. Indeed, she denied any emotional component of her pain. On this he said:

He diagnosed a chronic sensitised mechanical low back pain with neuropathic leg component secondary to a failed back surgery, right L5 radiculopathy and saw an ongoing requirement for opioid medication. He noted that she was ‘coping with resilience’.

The plaintiff also relies upon a report from Associate Professor Yeo of 28 September 2017 (CBP 260). Dr Yeo recorded the difficulties that the plaintiff has in carrying out her household duties. Whilst he thought she had a capacity and fitness to return to work there was a limitation of avoiding heavy lifting. He thought she required some domestic assistance although probably impermissibly he sought to quantify such care: see Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443 at [93]. On page 2 he noted that the operation she had undergone in June 2016 was prolonged and complicated requiring special post operative care for a CSF leak from the wound.

He thought that she remained prone to recurrent back pain since the 2015 accident. He noted that sitting was restricted to less than an hour and that she was restricted in her ability to flex her lower spine.

Dr Yeo diagnosed the plaintiff as suffering from a persistent right L5/S1 radiculitis in association with a recurrence of a right disc prolapse. He also thought that there was evidence of localised inflammatory pathology in the left sacroiliac joint. He opined that she would remain permanently susceptible to recurrence of low back pain.

The plaintiff also relies upon a report of Dr Giblin, orthopaedic surgeon of 11 December 2017 (CBP 264). The history given to Dr Giblin was the same as the plaintiff has given to this Court. She has difficulties carrying out household chores although, surprisingly enough, is able to lean on a lawn mower to push it forward. However, she is limited in what she can do in that regard.

Dr Giblin’s opinion was that her injuries were consistent with the accident noting that there was an injury to the L5/S1 disc. He thought that she was unfit for work that involved repetitive bending and heavy lifting. He did not see her being able to do mowing of lawns into the future.

Dr Giblin provided a second report on 23 January 2018 (CBP 280). He noted no inconsistencies and found that her son did all of the heavy housework and garden (page 3). On the following page he found that she had a persistent and severe recurrence of her low back pain and right leg pain leading to further surgery.

He thought the prognosis was not good and he anticipated that the plaintiff would continue to have severe problems with her lower back and leg pain into the indefinite future.

The plaintiff in this matter does not have simple soft tissue injuries. She has suffered a fracture to her lower spine causing the spine to slip forward onto the vertebrae below. As a result she has undergone surgery in the middle of 2016 including a fusion to her lower spine. The doctors all agree that this surgery has failed. In particular it is clear from the records of the GP and the opinions of all of the doctors who have provided reports in this case that she has a mechanical problem with her spine that will cause her long lasting, probably permanent, pain and restrictions.

So far as an alternate career is concerned the Court would observe that she is now 48 years of age. She has a significant ongoing problem with her lower back as a result of her fall in January 2015. She has difficulties standing for long periods of time and difficulties sitting for long periods of time. Her back is easily aggravated.

In those circumstances the chance of the plaintiff being able to find work that she could do that would make her any meaningful income is illusory. The stark reality is that she has only been able to work at the present because of the unpaid assistance of her son and partner. Even then she has obviously had significant problems and limitations in trying to work.

During oral submissions, counsel for the plaintiff submitted:

As to the Joint Expert Report before the Court, senior counsel for the plaintiff provided the following overview:

He also referred to other expert reports:

As to the reliance upon the surveillance footage in preference to the medical opinion before the Court, counsel for the plaintiff submitted:

Senior counsel for the plaintiff relied upon the authority of Coles Supermarkets v Haleluka [2012] NSWCA 343. At T11, senior counsel for the plaintiff stated:

The Court confirmed that the question of pain and whether such conduct aggravates it is fundamental to the question of damages:

It may be noted that during closing submissions, counsel for the plaintiff confirmed that to the extent any medical practitioner advances an opinion as to the amount of time that the plaintiff needs assistance for domestic tasks, that material is not relied upon (see Boral v Cosmidis at [92] (per Basten JA)).

In summary, the defendants’ submissions are as follows:

There is no dispute at to the seriousness of the injuries sustained after the incident. The Court had before it a Joint Expert Report prepared by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff, and Dr John Stephen, an orthopaedic surgeon qualified on behalf of Coles (to which I will return).

The plaintiff attended upon a medical centre that evening. She was examined by Dr Qiang Hu, who ordered x-rays. On 21 January 2015, the plaintiff went to her usual medical practitioner, Dr Ong. The plaintiff’s immediate treatment included painkillers, anti-inflammatories and drainage of the haematoma on her right leg.

Following multiple subsequent referrals to Drs Davidson and Tait, the plaintiff had a procedure of “decompression and fusion” at Macquarie Hospital in June 2016. The purpose of that procedure was, inter alia, to drain fluid from the plaintiff’s spine.

The plaintiff stated she suffered from “excruciating pain in my lower back, both hips and both my legs and had numbness on the top of my right foot since the operation”. She also stated that she had shooting pains down my legs into the soles of my foot into the toes.

The plaintiff’s post-incident and post-surgery treatment included cortisone, nerve root and “SIJ” injections. For pain management, the plaintiff was referred to a specialist Dr Ho. She also continued to see Dr Tait.

In April 2018, the plaintiff’s insurance company ceased coverage of her medical attendances and treatment. As such, the plaintiff ceased treatment.

The plaintiff deposed that she has been advised that further surgery is required to remedy her ongoing pain. She notes that she is “terrified of having another major surgery on [her] back”.

There was a dispute as to weight to be attributed to a particular aspect of the plaintiff’s medical evidence, namely, “the plaintiff's medical reports in which the doctors express opinions about the amount of time that the plaintiff needs assistance for domestic tasks”. I will return to that question. However, in this section of the judgment, I will review, in summary form, the medical evidence.

Before turning to that review, I note that on the final day of evidence, prior to oral submissions, an agreement was reached with respect to the admissibility of that particular aspect of medical evidence. Senior counsel for the plaintiff confirmed that “I will not be relying upon a doctor's opinion as to the amount of hours of domestic assistance that may be needed”. Senior counsel cited the Court of Appeal authority of Boral v Cosmidis at [92] (per Basten JA). It was submitted, in light of that authority, the doctors “impermissibly opined on that issue” - being the amount of time that the plaintiff needs assistance for domestic tasks. The parties agreed that the relevant passages should be treated as such, removing the admissibility issue raised by the defendants.

As earlier mentioned, the clinical records of the plaintiff, produced by various practitioners, were before the Court. Particular attention was placed upon the records produced by Drs Ho, Tait, Davidson and Ong. A selection of records produced by Dr Ho, and referred to throughout submissions and/or the course of evidence, appear below.

On 4 October 2016, Dr Ho provided a diagnostic and management opinion with respect to the plaintiff for low back pain. He opined:

Dr Ho recorded the description of pain provided by the plaintiff:

Dr Ho also recorded the plaintiff’s account of her “current physical capacity”:

He further observed:

Dr Ho diagnosed the plaintiff with “chronic sensitised mechanical low back pain with neuropathic leg component”. That diagnosis was described as secondary to:

A pain management program “with 7 medical, 12 psychology and 12 physiotherapy sessions” was recommended. It was anticipated that the plan would be effective and achieve the following:

On 1 November 2016, Dr Ho identified the following pain issues:

On 6 November 2016, he reported that the plaintiff’s pain on mobilisation had improved. He wrote:

On 21 February 2017, Dr Ho identified the following pain issues:

Dr Ho also noted that the plaintiff had “L4 sheath injunction two days ago” but was “still waiting for the benefit to kick in”. Dr Ho advised that it may take “up to a week for the injection to work”. He also reported that he “asked to her to avoid heavy lifting or prolonged bending”.

On 11 July 2017, he identified the following pain issues:

Dr Ho reported the plaintiff’s “pain remains at staus quo”. He also noted that the plaintiff had a recent MRI and bone which showed “facet arthropathy and SIJ dysfunction”.

As at 17 October 2017, the pain issues remained the same.

On 22 February 2013, in a letter addressed to Dr Lawrence Ong, Dr Davidson reported:

On 3 December 2013, in a further letter addressed to Dr Oong, Dr Davidson reported:

On 29 January 2018, Dr Davidson addressed a letter to the Brydens Lawyers, the plaintiff’s solicitors, setting out information, with respect to “specific requests” made by them, following a review of his medical records of the plaintiff.

He provided the following overview of the plaintiff’s history, known to him, in 2013:

Dr Davidson next turned to 2015, being the next time he saw the plaintiff. He reported:

Dr Davidson noted that he reviewed a CT scan from 6 February 2015, which demonstrated a “pars defect, which was not present on her preoperative imaging”. That pars defect “was confirmed on the MRI scan dated 3rd June 2015”.

As to his findings at that time, Dr Davidson reported:

Dr Davidson was asked a specific question “regarding the relationship between Jacqueline's bilateral microdiscectomy and her pars defect”. He opined:

On 16 October 2015, in a letter addressed to Dr Davidson, Dr Tait produced a report setting his observations and findings following his examination of the plaintiff.

Following his examination of the plaintiff, he reported:

As to the MRI results, Dr Tait opined that her “MRI findings certainly explain her symptoms, which she is finding extremely bothersome”. Dr Tait, in the result, recommended “an LS/51 posterior lumbar interbody fusion”.

Dr Tait also noted the following:

On 6 July 2016, an “MR Scan of the Spine” was performed, which was compared again the MRI from 3 June 2015. The results recorded:

Dr Piers Dugdee prepared the MR scan results. He concluded: “Unremarkable post-surgical lumbar MRI within the limitations caused by metal artefact. There is narrowing al L5/S1 bilaterally, but this still appears better than on the pre-operative MRI. No cause for the patient's symptoms is identified.

On 29 August 2016, in a letter addressed to Dr Ong, Dr Tait produced a report following his examination of the plaintiff following her fusion surgery.

As to his examination, he reported:

Dr Tait further opined:

On 26 September 2016, in a letter addressed to Dr Ong, Dr Tait reported on his 3.5 month review of the plaintiff since her “LS/51 posterior lumbar interbody fusion for isthmic spondytolisthesis with radiculopathy”.

Dr Tait reported:

As to examinations and treatment following the fusion surgery, he reported:

On 13 February 2017, in a letter addressed to Dr Ong, Dr Tait reported on the status of the plaintiff’s health 8 months since her fusion surgery. At the outset he noted “I was pleased to hear that with Dr Ho's expert management she has been making slow, but significant, progress since I last saw her”.

As to the result of the examination, Dr Tait reported:

On 10 April 2017, in a letter addressed to Dr Ong, Dr Tait provided a summary of the results of his examination of the plaintiff. He reported:

On 19 June 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff was “currently experiencing her pain on and off”. He reported:

On 29 June 2017, a bone scan was conducted by Dr Jonathan Tow of Nepean Radiology. The reason for the scan recorded “Lower lumbar pain and radiculopathy, L5/S1 fusion 17/06/16. For further assessment”. Dr Tow, reported:

Dr Tow included the following comment:

On 17 July 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff “is still very much debilitated by her symptoms”. He reported:

As to the result of investigations conducted around that time, he reported:

Turning to the “back pain” experience by the plaintiff, Dr Tait noted “her imaging has not shown any explanation for her ongoing symptoms”. That opinion, in context, is extracted below:

The plaintiff was cross-examined with respect to her July 2017 consultation. That evidence is extracted below:

On 25 September 2017, in a letter addressed to Dr Ong, Dr Tait reported that the plaintiff was “still suffering from shooting pain to the right toe as welI as numbness over the lateral aspect of the calf and into the dorsum of the foot. I am still unable to explain the cause of her ongoing symptoms”. He further reported:

On 2 November 2017, in a letter addressed to Dr Ong, Dr Tait reported that “[d]espite extensive investigation I haven’t been able to identify the cause of her right lower limb numbness and pain”. He provided a summary of the plaintiff’s account of pain and description of symptoms, together with his own observations based upon investigation. The full report is extracted below:

On 26 March 2018, in a letter addressed to Dr Ong, Dr Tait recorded a new ailment. He said: “She is now suffering from a new left lower limb pain which radiates via the lateral thigh, lateral aspect of the calf and shin before terminating at the top of the foot. This is possibly consistent with an L4 radiculopathy. She still has ongoing right foot numbness”.

On 2 May 2018, in a letter addressed to Dr Tait, Dr Pon Ketheswaran advised that he performed a “CT guided highly selective left L4 nerve root block… using a 22 gauge spinal needle”. Dr Ketheswaran reported that 2ml of Dexamethasone with 1ml Xylocaine had been injected around the nerve root. The plaintiff “did not have any change in pain score before or after injection”.

On 30 May 2018, Dr Tait reported that the plaintiff “is not at all keen on further surgery”. He described that position as “very reasonable”.

On 18 February 2019, in a letter addressed to Dr Tait, Dr Ganesh Shretha confirmed that a bone scan had been conducted on the plaintiff. The following conclusion was recorded:

On 19 February 2019, in a letter addressed to Dr Tait, Dr Sarah McGlone confirmed that a MRI lumbosacral spine scan had been conducted, with comparison to the previous MRI performed in April 2018. She reported:

Dr McGlone also made the following comment: “The appearance is stable. No compromise of the right L5 nerve. There ls neural exit foraminal narrowing at L4/5 mildly compressing the exiting left L4 nerve”.

On 6 March 2019, in a letter to Dr Ong, Dr Tait reported that the plaintiff’s symptoms “have shown no sign of abating”. The plaintiff’s pain was described as follows:

As to objective factors available he noted that “there was tenderness around the right greater trochanter”.

On 1 July 2020, in a letter to Dr Tait, Dr Ali Atabaki communicated the results of a bone scan. He opined that the “pattern of vascularity is unremarkable in early phrase images”. He also found “[t]here is a mild focal uptake at medial compartment of the left knee, suggestive of degenerative disease”. He concluded that there was a “[m]ild uptake at L5/S1 disconvertebral joint, most likely degenerative in nature. No active facet arthropathy in lumbar spine”.

On 19 June 2020, in a letter to Dr Ong, Dr Tait reported that despite having had a L5/21 posterior lumbar interbody fusion on 16 October 2015, “she is still experiencing debilitating back pain as well as left more than right lower limb pain and weakness”. His consultation with the plaintiff on that occasion was conducted over the telephone and not in person. During cross-examination, the plaintiff gave the following evidence with respect to the June 2020 report of Dr Tait. That evidence is extracted below:

On 11 December 2017, Dr Giblin produced a report setting out the result of his examination conducted on the same day. At the outset, he noted that the opinion expressed in that report was “entirely based upon [the plaintiff’s] clinical history and upon the evaluation of objective findings and history obtained on 11th December 2017”.

Dr Giblin set out his findings as to the plaintiff’s “present disabilities” in four categories: general, work, home and social. His findings are extracted below:

Dr Giblin provided the following opinion and prognosis:

Following that prognosis, Dr Giblin provided a further opinion with respect to work attended to by the plaintiff. He opined:

On 18 May 2020, Dr Giblin produced a further report for the medico legal purposes. He re-examined the plaintiff for that purpose.

Dr Giblin provided a short “history” of what had occurred since his last examination. He reported:

As to the her “present disabilities”, Dr Giblin returned to the four categories addressed in his earlier report. His findings are extracted below:

Dr Giblin’s opinion and prognosis in this second report remained the same as his previous report. He reported: “this lady still has persistent pain and discomfort. It is possible that part of her symptoms may relate to the L4/5 level”.

Turning to considerations relating to future work, he opined that she “remains unfit for work that involves repetitive bending or heavy lifting”.

During cross-examination, the plaintiff said she could “not really” remember seeing Dr Giblin. She qualified her answer with the following: “I remember seeing doctors but I don't remember their names”. As to representations made by him about the amount of jobs she did, she gave the following evidence:

She further said:

On 28 September 2017, Dr Yeo produced a medico-legal report, following his consultation with the plaintiff.

As to her past history, Dr Yeo reported:

As to the “nature and extend of the continuing disabilities”, Dr Yeo opined:

In advancing that opinion, reference was made to a review of the plaintiff’s x-rays, including the bone scans dated I September 2016 and 29 June 2017 as well as the MRI studies on 6 February 20I5, 3 June 2015, and 29 June 2017. Dr Yeo also noted that he had the opportunity to review CT scans of 8 July 2016 and 3 January 2017.

Turning to capacity to work, Dr Yeo opined that the plaintiff has “capacity and fitness to return to work with the limitations being the need to avoid repetitive heavy lifting”.

Dr Yeo’s prognosis is extracted below:

During cross-examination, the plaintiff was questioned about her consultation with Dr Yeo. She said she “vaguely” remembered seeing him, noting “I've seen a few doctors, I'm not sure which one that was”.

Turning to his advice about gardening, she said:

Turning to the topic of lifting, she gave the following evidence:

Dr John Stephen produced an independent medical examination of the plaintiff at the request of the defendants’ solicitors. Dr Stephen examined the plaintiff on 23 January 2018.

At the outset, Dr Stephen noted:

As to the incident, he reported:

Under the headings “current complaints” and “current treatment”, he reported:

Dr Stephens conducted a physical examination. His findings are extracted below:

Dr Stephen provided a summary of his review of the CT and MRI scans. The review, is extracted below:

Following his examination of the plaintiff, Dr Stephen provided the following diagnosis:

Dr Stephens further opined “[t]here is no doubt in my mind that the fall of 20 January 2015 has been a significant contributing factor to Ms Pike's current impairment and disability”.

As to the prognosis, he opined: “The prognosis is not good. I anticipate that Ms Pike will continue to have severe problems with low back and with leg pain into the indefinite future. This is unlikely to be improved by further surgery”.

As mentioned earlier, Dr Giblin and Dr Stephen produced a Joint Conclave Report dated 22 September 2020. The experts provided a joint opinion with respect to matter of agreement and disagreement, respectively, which are set out below.

As to matter of agreement, they opined:

As to matters of disagreement, the experts noted only one point, which is extracted below:

An Occupational Therapy Assessment of the plaintiff’s living arrangements and ability to independently undertake activities of daily living was conducted by Ms Zeman. Ms Zeman’s report is dated 18 April 2018. She undertook an assessment of the plaintiff at her home on that date.

The various components of Ms Zeman’s report and the plaintiff’s challenge to that evidence are set out in the summary of the submissions of the plaintiff as to domestic assistance in the discussion of heads of damages below.

I will return to the appropriate findings with respect to the medical evidence in the light of the surveillance footage and the plaintiff’s evidence after mentioning some of the plaintiff’s evidence regarding undertaking her business and alternative work.

Senior counsel for the plaintiff made the following submission as to the plaintiff’s business and the involvement of her son following the accident:

I note that during cross-examination, the plaintiff was challenged about her choice of work in face of pain. Her evidence is extracted below:

Senior counsel for the defendants further cross-examined the plaintiff as follows:

The plaintiff underwent back surgery by Dr Davidson on 6 November 2013 at Nepean Hospital. That surgery was undertaken after a long history of the plaintiff suffering back pain (particularly since 2005) and imaging showing a central and right sided disc protrusion causing nerve root compression. The plaintiff underwent a bilateral LS/51 microdiscectomy and nerve root decompression.

The operation was substantially successful. Dr Davidson reported that the plaintiff had a complete resolution of her sciatica, but had some ongoing pain including hip pain. I have some doubt about the plaintiff’s evidence of complete recovery of her back problems after this operation given that she complained about back and hip pain six weeks after the surgery (even though the sciatica had been resolved), there was an ongoing record of back and buttock pain in 2014 and her GP’s notes of January 2015 refer to “exacerbate lower back” (after walking into an open plastic drain).

As a result of the incident, the plaintiff suffered serious injury which Dr Davidson felt was not contributed to by her previous surgery. The injury suffered was evidenced by a right-sided L5 pars deficit with a grade 1 spondylolisthesis.

In June 2016, some 18 months after the incident, Dr Tait performed an LS/51 posterior lumbar interbody fusion for isthmic spondylolisthesis with radiculopathy.

Following surgery, the plaintiff underwent a substantial period of rehabilitation and recovery to the end of 2016.

On 4 October 2016, Dr Ho, a pain and rehabilitation specialist, described the plaintiff as experiencing stabbing and dysaesthetic pain over the lower back radiating to the bilateral hips. She had reduced motion of the lumbar spine and restricted current activity. Dr Ho diagnosed chronic sensitised mechanical lower back pain with failed back pain surgery syndrome. A physiotherapy regime was put in place.

Dr Ho’s diagnosis was confirmed on 21 February 2017. Reference was made to a disc protrusion with discogenic pain. The plaintiff was told to avoid heavy lifting.

In April 2017, Dr Tait stated that he was disappointed with the results 10 months after the plaintiff’s operation. The plaintiff described pain at various locations of her body including the lumbosacral junction and left lower limb pain.

On 11 July 2017, Dr Ho identified the continuance of failed back surgery syndrome and a L4/5 disc protrusion. The plaintiff was ‘coping’ with resilience and ongoing opioids and an antineuropathic pain agent.

On 17 July 2017, Dr Tait reported that the plaintiff was still very much debilitated by her symptoms. He stated that the plaintiff reported back pain at the lumbosacral junction which was worse on the right side. Dr Tait referred to Dr Ho as managing the pain.

In July 2017, the plaintiff commenced her lawn mowing business which involved voluminous and arduous work involving significant lifting and bending as demonstrated by the surveillance footage before the Court.

The plaintiff was cross-examined about being “debilitated” by her symptoms at this time as referred to in Dr Tait’s report and, in particular, as to her reporting that bending set off the pain. I have earlier referred to the plaintiff’s unsatisfactory evidence in this respect in the light of the surveillance footage which, inter alia, depicts at about this time (and in subsequent years) the plaintiff bending whilst undertaking mowing work without any bending avoidance behaviour. That aspect of the work together with other aspects of the work such as lifting mowers raises significant doubts about the extent of any incapacity suffered by the plaintiff and the assertion of pain or at least the extent of the pain referred to by the plaintiff as referred to earlier in this judgment in discussing the Markus ruling, the credit of the plaintiff and the review of the medical evidence. It may be noted that at this time, Dr Tait stated that there was no explanation for the plaintiff’s ongoing symptoms.

In September 2017, Dr Yeo stated that the plaintiff demonstrated normal muscle tone, no localised wasting and with limitations in pain free movements of the right hip but a normal range of movements in the left hip. He noted the persistence of a right SLS/S1 radiculitis in association with a recurrence of a right disc prolapse.

Dr Yeo also also stated that there was evidence of a localised inflammatory pathology in the left sacroiliac joint although the relationship with the incident in this respect is unclear.

Dr Yeo made his assessments in the light of the history of the plaintiff’s surgeries. He stated that the plaintiff needed to avoid heavy lifting. That type of lifting was, of course, inherent in the mowing work undertaken by the plaintiff which the surveillance footage showed was done with some strength and fluidity at that time.

In November 2017, Dr Tait stated that he was not able to identify the cause of the plaintiff’s right side numbness and pain. Dr Tait also noted that the plaintiff had numbness in her hands caused by Buerger’s disease.

In December 2017, Dr Giblin issued a report with respect to the plaintiff which contained, inter alia, a heading “Present Disability”. In this section of the report, he indicated that the plaintiff had reported that she was mowing lawns three times a week for an hour under heavy medication. She apparently reported that what used to take half an hour, now took an hour. That reporting did not reflect, on the surveillance material, the manner in which the plaintiff undertook her continuing mowing business at that time.

That said, Dr Giblin took the view that, even at the reported level of mowing activity, the repetitive bending and heavy lifting involved in mowing should have the plaintiff looking for “an alternative career”. It may also be noted in this respect that Dr Giblin’s report and his subsequent report in 2020 are the first reports to recognise, to some degree, the work actually being undertaken by the plaintiff.

It may also be noted that Dr Giblin’s report in 2020 again refers to the plaintiff undertaking mowing tasks by doing three to five jobs a week for approximately one hour each. Dr Giblin maintained the view that the plaintiff had persistent pain and discomfort which possibly related to the L4/L5 level of her spine and that she remained unfit for work that involved repetitive bending and heavy lifting. Again, the surveillance evidence revealed a fitness for the heavy mowing work at a very strenuous level requiring strength and agility proximate in time to this report.

Dr Stephen concluded an examination of the plaintiff on 23 January 2018. He reported that the plaintiff walked without a limp, there were no inconsistencies, her lumbar posture was normal, there was no muscle wasting in the lower limbs and that the plaintiff had a fair range of lumbar movement. He also reported that hip movements were in the normal range and that numbness in the foot was reported.

Dr Stephen opined that the plaintiff had sustained a large haematoma of the right outer leg which left a minor soft issue deformity. He found that the plaintiff had sustained a persistent and severe recurrence of her lower back and right leg pain which she claimed was much improved after the operation performed in 2013 (in fact, she claimed that it was entirely absent).

Dr Stephen opined that the incident was a significant contributing factor to the plaintiff’s current impairment and disability. He considered that the prognosis was not good but that her condition was unlikely to be improved by further surgery.

In the Joint Conclave Report, Dr Giblin and Dr Stephen opined that the plaintiff had undergone a difficult operation after the incident which was not successful and that she continued to have back and right leg pain. She also complained of numbness in the right foot and left leg pain.

In the joint report, the doctors indicated that the plaintiff had complained about ongoing back pain and that her lawn mowing business was limited by her symptoms. The doctors indicated that there appeared to be developing a solid fusion and some narrowing of the L4/5 disc with possible impingement on the L4/5 root. It was also reported that the plaintiff had sustained a persistent and severe occurrence of her lower back pain and right leg pain and that the surgery in 2017 had not improved her symptoms. Both experts opined that the incident was a major contributing factor to the plaintiff’s current impairment and disability and that her prognosis was not good. There was a disagreement as to whether surgery would be of some assistance.

In Kubovic v HMS Management, the NSW Court of Appeal dealt with a matter in which the appellant was injured in an accident whilst he was working as a chef for the respondent and where, in an action for negligence, the primary judge had not accepted the injuries sustained by the appellant were serious in the light of surveillance evidence that was admitted in that matter. This was notwithstanding medical evidence called in the proceedings.

The Court found that:

The surveillance footage in that case involved the depiction of the appellant performing certain activities at a gym.

The further observations of Ward JA as to the surveillance footage are appropriate in that respect at [143]-[145] were as follows:

It is perhaps understandable that the treating and examining doctors may have taken, at face value, the statements by the plaintiff as to the extent of her pain and suffering. She experienced a serious injury and underwent surgery, although there were aspects of the opinions of the doctors querying why the operation had not better resolved the plaintiffs back and leg condition.

However, the medical opinions were given either without knowledge of the nature and volume of the work performed by the plaintiff in the mowing business at the time of the medical evaluations or based on an inadequate understanding of those considerations and volume of work performed or its actual nature. (For example, Dr Stephen referred to pushing a mower and Dr Giblin, “mowing” although he refers to the avoidance of a career involving bending or heavy lifting).

I have found the plaintiff’s evidence to be unreliable. The surveillance footage reveals a person capable of arduous work involving bending and heavy lifting. It is demonstrative of strength and a fluidity of movement. The unreliability of the plaintiff’s evidence also undermines her account as to the suffering of pain or suffering to the degree she reported to the doctors providing reports. The work shown in the surveillance footage is hard work, inconsistent with the suffering of acute back and leg pain. Furthermore, the surveillance footage does not show a restriction in movement or objective signs of pain. I do not consider the period of the surveillance to be unrepresentative of the plaintiff’s work given the amount of the footage, period of time over which it was conducted and the consistency of the observations of the plaintiff.

I consider that, even in the absence of cross-examination of the doctors providing medical reports in the proceedings, the weight that may be given to medical reports in these circumstances must be significantly reduced insofar as they are based, as they substantially were, upon the self-reporting of the plaintiff as to her work activities, her capacity for the same (or assumed capacity) and the level of pain she suffered whilst undertaking the physical activity which is her business and work. This is particularly so given the volume of work undertaken by the plaintiff over an extended period. Overall, I agree with the submission of the defendant that a significant part of the plaintiff’s case depended upon her credibility as a witness.

I do not find that the plaintiff does not suffer any ongoing back and leg pain deriving from the incident., There is in prospect some ongoing pain in the plaintiff’s back and leg which may modestly impact the plaintiff’s future career earning prospects, for which I have made provision in the head of damages. However, as I have stated, her assertions are significantly exaggerated when viewed in the light of the evidence before the Court such that the weight of the medical opinions predicated upon her accounts of the severity of her condition is significantly reduced. The plaintiff has a capacity to work, even to undertake arduous work, with pain managed adequately by medication.

The plaintiff relied upon an amended Schedule of Damages (see p 703 and following of the Court Book). By an email dated 6 November 2020, the defendant provided an amended Schedule of Damages.

Senior counsel introduced the plaintiff’s current treatment regime, in summary:

As this matter comes to be assessed pursuant to the provisions of the Civil Liability Act. The Court, in determining damages for non-economic loss, is required to determine what percentage of “a” (not “the”, see Matthews v Dean (1990) Aust Torts Reports 81–037; 11 MVR 455) most extreme case this lady would be. The schedule of damages suggests 40% of a most extreme case.

On one view of it, that would underrepresent the problems that the plaintiff has. At the age of 48 the undisputed evidence discloses that she has ongoing restrictions in terms of sitting, walking and standing. She had unremitting pain in her lower back.

All of that is accepted by Dr Stephen on behalf of the defendants. There is no medical evidence to gainsay it.

She has not been able to carry out the sports that she did beforehand. She wanted to work before this accident because of the social isolation she felt and the need she felt to get back to being productive. All of that has been taken from her.

The medical evidence would strongly suggest that she will live with this pain and restriction for the rest of her life, a period of nearly 40 years. It has had, therefore, a very significant impact upon her life.

Accordingly, a judgment in her favour that encompasses 40% of a most extreme case for non-economic loss is probably at the bottom of any ‘range’ for such damages.

Her non-economic loss should be assessed at no more than 25% of a most extreme case. It would be wrong to assume that this must be any higher because of the initial injury, and the subsequent surgery; the current and future situations are fundamental.

My views in this respect broadly accord with the defendants having in mind my earlier conclusion as to her capacity since the incident on the impact of any pain or suffering in its aftermath.

In my view, the plaintiff’s non-economic loss should be assessed at 29% of the most extreme case.

So far as economic loss is concerned the past is based upon $800 per week net which she should have been able to earn but for the accident. From that amount has been deducted the various amounts that her tax returns show that she has earned. There has also been some reduction to take into account the fact that she has had a hysterectomy and would not have been able to work for a week or so in any event.

If plaintiff had not been injured in the accident, she would have derived gross earnings from her lawn mowing and gardening business from 6 to 8 jobs per day in summer and 4 to 6 jobs per day in winter at $50 per job. This amounts to gross weekly earnings of between $1,800 and $2,400 on average over the course of a year. She had proposed to work 6 days per week. Assuming an average of 7 jobs per day, 6 days per week a gross income of $2,100 is produced.

The expenses that the plaintiff has incurred in deriving her current gross business income were:

Accordingly, her current weekly expenses average between $43 to $48 per week over the course of a year. This is for doing the approximately 6 jobs per week that she is currently doing.

Presuming that she was able to do 7 jobs a day, 6 days a week her expenses would then be:

As a result of injuries sustained in the accident, the plaintiff was unable to resume her lawn mowing and gardening business in the manner that she had hoped to carry it out prior to her accident. She did not return at all until May 2015.

At the time the plaintiff returned to her lawn mowing and gardening business in about May 2015, she performed 3 to 6 jobs per week at $50 per job. This amounted to gross weekly earnings of between $150 to $300 per week.

Reducing the weekly income of $2,100 by $334 leaves a taxable income of $1,766 per week. On current tax rates that would amount to $1,310 net per week.

However, the particulars relied upon by the plaintiff provide a significant margin for the fact that the business was being built up and other such vicissitudes. Accordingly, for the period up to the present the claim proceeds on a basis that she would have earned $800 net per week. The plaintiff does not seek to resile from that claim.

In relation to the future, the claim, more realistically, is based upon a net loss of earnings of $1,250 per week. This is amply justified by the evidence.

Further, so far as the future is concerned the Court would accept the plaintiff’s evidence that she could work at least 30 jobs a week earning $50 to $60 per job. That amounts to $1,500 to $1,800 gross per week. From that tax would have to come as would expenses.

Of course, the matter is one where some speculation is required given that she had only just started her business. What the Court would accept is that this lady had a very strong work ethic, even in the face of injuries that might have brought other people down.

In terms of past economic loss, it is evident that the plaintiff was working at or near full capacity through much of 2015 despite the accident. She conceded she was doing up to nine lawn jobs a day in that year: T 35.20. She registered her business name in the middle of that year: T 112.15. On 16 October 2015 Dr Tait recorded that she was still able to mow 6-8 lawns a day: CBP 243.

Even taking appropriate caution in relation to the accuracy of histories in medical reports, this is likely what she said, because the fact is further explained in the same sentence by the doctor in a logically consistent fashion. The plaintiff’s account of the what she in fact said, (I probably have said I would have been able to do that much, (uninjured), T 38.30), is highly improbable, because it is so unlikely that a statement to that effect would have been incorporated in any way into the doctor’s history of what she was doing, and the plaintiff herself was such an unreliable witness.

The evidence then would only seem to support past economic loss claims for some closed periods leading up and recovering from the June 2016 operation.

Economic loss damages are to be awarded for loss of capacity to earn. A full and proper consideration of the surveillance evidence, and the plaintiff’s quite unsatisfactory evidence in the face of this, leaves little basis to conclude that there remains any economic incapacity at all. On any view she continues to regularly perform what she herself described as “hard work”. The regular and onerous nature of the work can be seen on the film, and further was recorded by Dr Ho is his report of 4 October 2016 at CBP 292, (although again the plaintiff saw fit to deny the accuracy of the doctor’s report).

A substantial part of the defendant’s submissions accord with the findings I have made as to the plaintiff’s evidence, her undertaking of work and her capacity to undertake hard physical work. I also agree with the defendant’s historical summary of work undertaken by the plaintiff and the relevant passages of the plaintiff’s evidence relied upon in the defendant’s submission on this issue.

The defendant proposed damages for past economic loss upon the bases noted for each time period:

By reference to the respective periods in the above schedule, I allow damages for the periods (b) and (c) for the amounts shown and disallow claims for economic loss for periods (a) and (d).

I also accept that allowance should be made for a cushion or buffer against future disadvantage in the open labour market becoming manifest. The defendants’ schedule of damages contained an amount of $25,000. I would allow $50,000.

The report of Ms Zeman contains much inadmissible material. For example, at CBP 882 in para 8.6, the author, an occupational therapist without medical qualifications, delves into medical matters, particularly in the second and last sentences. In CBP 886-887 the author has sought to undertake what would normally be a medical examination and then put her own, non-medical, opinion in her report following from those examinations.

At CBP 889 the author has apparently undertaken psychometric testing. What qualifications she had to do that is unknown. Further, the results that she has produced apparently rely upon unverifiable testing. The methodology is not disclosed and the results are not disclosed beyond her interpretation of them.

In Brighten v Traino [2019] NSWCA 168 at [78]-[79], the Court of Appeal was particularly critical of neuropsychological testing “the validity of which was impenetrable and unproven in Court”.

The purpose of the assessment undertaken by Ms Zeman was to:

Ms Zeman was not provided with the reports of Associate Professor Yeo, Dr Matthew Giblin or Dr Ho.

At 5.6, BACKGROUND Ms Zeman stated “Despite reported total resolution of spinal symptoms in 2013, Ms Jacqueline Pike has not worked since 2012, assumed to be associated with her ongoing symptoms of Buerger’s Disease”.

At 6.24, HISTORY Ms Zeman stated “Ms Jacqueline Pike stated that prior to the subject incident, she last worked in 2012, undertaking lawn mowing and property maintenance as a contractor”.

At 6.25, HISTORY Ms Zeman stated “At the time of the subject accident, Ms Jacqueline Pike was on a disability support pension...in the process of starting up her own lawn business in the Penrith District. …she had started advertising…she had not been working prior to such given her having been diagnosed with an autoimmune disease and given her previous history of spinal injury and associated surgery”.

At 6.26, HISTORY Zeman stated “…following the subject accident…she went on to establish her lawn mowing business….”

At 14.2, Post Incident Roles and Responsibilities Ms Zeman stated “Ms Jacqueline Pike advised that some four months following the subject incident, she started up her lawn mowing business….”

Having regard to the evidence available in these proceedings, the above statements are clearly not correct.

At 8.6, PREMORBID AND CONCURRENT MEDICAL HISTORY Ms Zeman provided an opinion as to the triggering of Buerger’s disease.

Ms Zeman is not qualified to give this opinion nor was such opinion reasonably required for the purposes of the assessment.

At 12, FUNCTIONAL CAPACITY EVALUATION, Ms Zeman reported (12.1.3 Cooperation and Engagement) “Ms Jacqueline Pike…initially refused to allow observation of her home without solicitor approval…was unable to assess the whole home, as assessment access was restricted to living areas, kitchen and bathroom only”.

In examination-in-chief, the plaintiff denied stopping the OT access to parts of her house other than the bedrooms (T 25.38-T 26.5).

At 13, RESULTS OF STANDARDISED TESTING Ms Zeman undertook psychometric testing.

The plaintiff submitted the Court should have no regard to the purported results and the opinions expressed by the consideration of the testing. Ms Zeman is not qualified to issue psychometric testing, nor is she qualified to interpret any purported results from such testing. She has no qualifications in general medicine or psychology.

Such testing was not reasonably required for the purpose of the assessment.

At 14.4, Assumptions regarding Gratuitous care periods, Ms Zeman notes from the report of Dr Tait, “She is having great trouble walking in the street; however, she is still able to mow 6-8 lawns a day as she finds it easier to walk leaning forward with the mower”. Ms Zeman further noted “Ms Jacqueline Pike reportedly continued to undertake such work until 2 May 2016, gaining assistance from her son as necessary”.

At 14.7.2, Internal Housekeeping Ms Zeman assessed the plaintiff as having the functional capacity to complete light routine household maintenance tasks, including vacuuming, mopping and bathroom maintenance. This assessment is based upon a report to Dr Tait, after the subject incident and before surgery in June 2016, and apparently disregarding of the plaintiff’s stated functional restrictions.

Ms Zeman opined that, with respect to reported difficulties with packing and unpacking and the need for assistance from her children, that “this would have been required in any event, given her past history of spinal injury and co-morbidities”. This assessment failed to have regard to the plaintiff’s report of no pain or restriction of movement prior to the incident in January 2015.

In Internal Housekeeping Gratuitous Assistance (Past Care) (other than periods 1,3,5 and 6) Ms Zeman assessed the plaintiff as “having the capacity to likewise engage in routine residential maintenance tasks with pacing of task performance”.

The plaintiff submitted that the above assessment is based upon a false premise. That false premise being that at “other times she demonstrated the capacity to engage in heavier tasks such as mowing associated with her business”. The plaintiff’s evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.

Similarly, with respect to the assessment of 14.7.3 Laundry Gratuitous Assistance (Past Care), the plaintiff submitted the necessity for assistance from her children with respect to hanging out laundry, the plaintiff’s evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.

With respect to 14.7.5 External Heavy Household Maintenance, Ms Zeman opined that for the period 11 May 2015 to 2 May 2016 “the sequelae of the subject incident itself did not impact on heavy household maintenance tasks”. The plaintiff submitted that the evidence should be preferred as to her pain and restriction of movement and functioning during this period. Ms Zeman relied upon what Dr Tait says that she told him (Dr Tait’s report of 16 October 2015). In cross-examination, the plaintiff denied telling Dr Tait she was mowing 6-8 lawns a day.

At no stage did Ms Zeman report what the plaintiff says about the frequency and nature of the lawnmowing work she does.

At 14.7.6 Shopping/Financial Management (CBP 903), Ms Zeman provided no basis for the assessment that the plaintiff is assessed as fully independent with shopping. The plaintiff submitted the evidence of the plaintiff and her son should be preferred.

At CURRENT SYMPTOMS, Ms Zeman reported the subjective experience of the plaintiff’s pain as at the date of the assessment - April 2018. The rating given with respect to pain and weakness across the entire lumbral sacral region, pain aggravated by seating etc, was said to be 5-8/10.

An ntermittent ‘tearing’ sensation over the bilateral hips, radiating down the lateral and posterior aspect of both lower limbs and into the feet was given a rating of 5-8/10.

The plaintiff submitted that in the contemporaneous clinical notes of Dr Ong, the reports Dr Davidson, Dr Ho and Dr Tait there is continued reference to back pain. These references also include the prescription of powerful analgesia such as Lyrica, Mobic, Endone and Targin. It was also submitted that no reasons are given by Ms Zeman for such a broad rating.

The plaintiff further submitted that it is inexplicable in the circumstances of the objective medical evidence as to why such a broad range of ‘subjective experience of pain’ is provided, when the objective medical material and the plaintiff’s own report identifies serious and persistent pain. Further, again, having regard to the objective medical material, and the plaintiff’s reported pain and restriction of movement provided at 10. CURRENT SYMPTOMS, the assessment provided by Ms Zeman at 12.2.4. Range of Motion (ROM) for Hip - Normal active ROM in all planes - is inexplicable.

In all of the circumstances, no weight should be given to the report of Ms Zeman and the evidence of the plaintiff and her son should be preferred. Further, the objective medical evidence with respect to capacity and past and future care should be preferred.

For those reasons alone the plaintiff submitted that little weight can be placed upon the report of Ms Zeman.

Further, the way that Ms Zeman approached the matter was apparently to disbelieve the plaintiff, something that Dr Stephen certainly did not. For example, Ms Zeman finds that so far as the internal housekeeping is concerned the plaintiff was independent. Yet under the heading ‘Comment’ she recorded, presumably from the plaintiff, a history that she, the plaintiff, currently relies upon her son for assistance. However, in the third last paragraph of that page Ms Zeman gives a medical opinion, namely that the plaintiff’s report of difficulties with tasks such as vacuuming, mopping and bathroom cleaning, were not consistent with her reports to Dr Tait. Essentially, Ms Zeman chose to disbelieve this plaintiff and instead make her own medical evaluation.As the Court of Appeal has found elsewhere, the lay evidence of persons involved in the house cleaning is to be preferred over the assessment of someone such as Ms Zeman.

The plaintiff’s evidence and that of her son is that he has been spending about 10 hours per week assisting her. Accordingly, a claim is made in that regard on the basis that the care has been provided gratuitously.

However, that is unlikely to continue forever. The plaintiff should be provided with damages that allow her to engage a cleaner for some hours a week. The claim in the schedule of damages claims 8 hours a week at $41 per hour. There is evidence as to what it costs to employ such persons, namely $52 per hour. That leads to a claim for future domestic assistance of $375,232.

I accept that, as contended for the plaintiff, there are aspects of Ms Zeman’s report which should be viewed with considerable caution and afforded little weight particularly as opinions of a medical character.

Nonetheless, in my view, the evidence does not ultimately support any claims for domestic assistance for the past. There may have been some periods where she required gratuitous assistance in this regard, but having regard to her work history, it has not been established that there have been any periods of 6 hours per week for 6 months in accordance with the statutory threshold.

I have already found that the evidence of the plaintiff’s son as to domestic assistance may be doubted. His statements of what chores he did, and more importantly why, cannot be reconciled with the plaintiff’s demonstrated strong physical capacity in 2015, and since 2016: His estimates of time spent years earlier, as a teenager, were unconvincing.

There is no basis to conclude that the plaintiff will require any domestic assistance in the future, paid or otherwise. She continues to regularly perform tasks in her work as or more onerous that any household chores.

I agree that, even the occupational therapist’s modest allowances for assistance, were too much. Ms Zeman was however correct in using the fact that the plaintiff could do paid gardening work as an objective indicator, rather than simply accepting the plaintiff’s statements. Ms Zeman’s assessments as to the plaintiff’s lawn mowing work are compatible with the findings in this judgment as to the plaintiff’s capacity.

I note that during cross-examination, the plaintiff gave the following evidence as to the difficulties she experiences with “bending” for housework in contrast to lawn mowing work which underscores why her claim for domestic assistance should fail, in the light of my findings as to the unreliability of her evidence. An extract of that evidence appears below:

Any claim for past domestic assistance by the plaintiff would, in my view, be at best for closed periods and would no surpass the threshold under s 15(3) of the Civil Liability Act. I do not consider the plaintiff will require further domestic assistance.

The plaintiff’s Schedule of Damages makes a claim for $174,228 for past treatment expenses. Of this $137,941 has been paid by Coles.

The claims additional amounts for Medicare ($7,500), pharmaceutical expenses ($4,168.84), the Nepean Hospital (unpaid of $1,570) and parking and travel expenses ($3,047.22).

The plaintiff was to bring in revised Medicare amounts to the date of hearing but has not done so. I will deal with this matter further below.

Past out of pocket expenses have been covered by Coles in the sum of $137,941. The payment of those expenses should be allowed. I do not consider there is a basis for further expenses. The position as to Medicare amounts will need further consideration.

So far as the future is concerned the plaintiff takes various medications and that is obviously going to continue for the rest of her life. There is a possibility, but a possibility only, that she might require some future surgery as suggested by Dr Giblin in the conclave joint report.

A claim for $40,000 for future treatment expenses is made and it is submitted that that is more than reasonable in all the circumstances.

The evidence does not establish that future surgery is necessary because of the accident, or likely to be offered to the plaintiff, or likely to be chosen by the plaintiff. The joint report of the medical experts was divided on the need for this treatment] and the plaintiff has expressed reluctance.

Otherwise, the plaintiff continues to take medication, as she did for many years prior to the accident.

As noted, Coles has already paid an amount of $137,941.80 to or on behalf of the plaintiff in relation to past out of pocket expenses with respect to the accident. Coles has also paid a $20,000 ex gratia lump sum, without admission of liability. These sums need to be accounted for in any damages award.

The defendant accepted that an allowance should be made for future medical expenses against the chance that the accident related condition may flare up and require medical or GP visits. It has allowed for $2,000.

In my view, an allowance of $8,000 should be made for future out of pocket expenses.

Coles is liable in negligence for any injuries, loss or damages occasioned to the plaintiff arising from her fall at the car park outside a Coles supermarket on 20 January 2015.

I do not find the owners liable in negligence.

No issue of contributory negligence arises in the proceedings. By virtue of arrangements between the defendants, the cross-claims have fallen away.

The Court has made determinations as to each head of damage contested in the proceedings which are specified in the section of my judgment bearing that heading.

At the conclusion of the hearing, the amount of Medicare charges remained uncertain. The Court indicated that, in that light, some further steps may be required before judgment in order to determine the quantum of damages. The Court has not received any update in that respect.

The defendants should bring in short minutes of order reflecting this judgment, after discussion with the plaintiff, as to Medicare charges. There is liberty to have the matter listed in the event of any dispute as to those charges or the form of the short minutes of order. Costs shall be reserved.

The Court directs that the defendants bring in short minutes or order reflecting this judgment within 14 days of the publication of the judgment